UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


LEADING  CASES 


UPON 


THE  LAW  OF  TORTS 


SELECTED    BY 


GEORGE  CHASE 

IM 

PROFESSOR  OF  LAW  IN  THE  NEW  YORK  LAW  SCHOOL,  NBW  YORK  CITY, 
AND  DEAN  OF  THE  LAW  FACULTY 


SECOND   EDITION 


ST.  PAUL,  MINN. 

WEST  PUBLISHING  CO. 
1904 


COPYRIGHT,  1891, 

BT 

WEST  PUBLISHING  COMPANY. 


COPYBIOHT,  1904, 

BT 

WEST  PUBLISHING  COMPANY. 


T 

3(^ 
1904 


PREFACE. 


THIS  collection  of  cases  upon  the  Law  of  Torts  is  intended  to  supple- 
ment and  illustrate  the  statements  of  legal  principles  which  are  set 
forth  in  the  various  treatises  upon  this  subject.  Object  lessons,  show- 
ing the  application  of  principles,  are  as  efficacious  in  the  study  of  law 
as  in  the  study  of  other  branches  of  learning,  and  such  lessons  are 
afforded  by  the  actual  decisions  made  by  the  courts  in  specific  instances. 
Such  decisions  may  also  exhibit  the  growth  and  development  of  legal 
doctrines.  The  aim  has  been  to  select  the  most  valuable  and  important 
cases  that  could  be  found,  giving  a  comprehensive  view  of  tfye  particular 
point  or  question  discussed,  and  presenting  the  actual  living  law  of 
to-day  as  the  result  of  the  long  process  of  adjudication  in  England  and 
in  this  country.  Hence  the  volume  comprises  modern  cases  to  a  large 
extent,  and  in  some  instances  these  are  among  the  most  recent  that 
have  been  issued. 

The  cases  are  printed  in  the  same  general  form  in  which  they  ap- 
pear in  the  regular  reports,  viz.,  with  head-notes,  statements  of  facts, 
and  sometimes  arguments  of  counsel,  prefixed  to  the  opinions.  Run- 
ning; head-lines  in  bold-faced  type,  also,  direct  the  attention  of  the 
reader  to  the  principle  treated  of  in  the  particular  case  that  follows. 
Numerous  other  valuable  cases  are  also  cited  after  each  of  those  that 
are  printed  in  full,  so  that  the  reader  can  extend  his  researches  more 
widely,  if  he  so  desires.  These  cited  cases  are  also  among  the  most 
important  authorities  upon  the  various  points  discussed.  G.  C. 

NEW  YORK,  October,  1891. 


NOTE   TO   SECOND    EDITION. 

IN  this  edition  cases  of  special  value  and  interest  that  have  been  decided 
since  the  first  edition  was  issued  have  been  added  to  the  text,  or  have 
been  substituted,  in  some  instances,  for  cases  of  less  importance  which 
the  earlier  edition  contained.  Extensive  notes  have  also  been  appended 
to  many  of  the  cases,  citing  the  recent  authorities  very  fully  and  exhib- 
iting the  present  condition  of  the  law  upon  the  various  topics  treated. 
It  is  hoped  that  the  value  of  the  book  will  ba  found  much  increased. 

G.  C. 

NEW  YOBK,  October,  1904. 

(iii)* 


TABLE  OF   CONTENTS. 


General  Principles,  1. 

No  tort  committed,  unless  a  legal  right  or  legal  duty  is  violated,  1. 

The  violation  of  a  moral  right  or  duty,  unless  it  also  amounts  to  a  legal 

right  or  duty,  does  not  constitute  a  tort,  15. 
Illustration  of  the  establishment  of  legal  rights  by  the  common  law,  in 

the  decision  of  "cases  of  novel  impression,"  21. 

Illustration  of  the  creation  of  legal  rights  or  legal  duties  by  statute,  28. 
Injuria  sine  damno  gives  a  right  of  action,  36. 
Ex  damno  sine  injuria  non  oritur  actio,  44. 
In  some  classes  of  cases,  there  must  be  damage  sustained  In  order  that 

there  may  be  a  cause  of  action  for  tort,  60. 

In  actions  of  tort,  damages  may  be  awarded  for  the  proximate,  but  not 
for  the  remote,  consequences  of  the  tortious  act — Nature  of  this 
distinction,  75. 

a.  General  principles,  75. 

b.  Difference  between  a  cause  and  a  condition,  80. 

c.  Intervening  operation  of  a  natural  force,  82. 

d.  Intervening  human  agent,  acting  instinctively  or  In  an  emergency, 

84. 

e.  Intervening  human  agent  under  other  circumstances,  93. 

Torts,  as  distinguished  from  crimes,  do  not,  in  general,  involve  a  wrongful 

intent,  118. 

Same  principle ;   lunatics  liable  for  torts,  123. 

There  is,  however,  no  liability  in  tort  for  purely  accidental  injuries,  127. 
An  action  upon  tort  lies  for  the  breach  of  a  right  or  duty  created  by  law, 

even  though  the  performance  of  such  right  or  duty  may  have  been  as- 
sumed by  contract — In  such  cases  the  plaintiff  may  either  sue  ex  con- 

tractu  or  ex  delicto,  132. 
In  some  cases  a  plaintiff,  instead  of  suing  ex  delicto  for  a  tort,  may  waive 

the  tort  and  sue  ex  contractu,  upon  an  implied  contract,  139. 
So  a  tort,  as  a  violation  of  legal  duty,  may  involve,  as  one  of  its  elements, 

a  breach  of  contract,  142. 
In  cases  of  contract,  where  no  legal  duty  arises  independent  of  contract, 

one  not  in  privity  with  the  defendant  cannot  recover  against  him  in 

tort,  151. 
But  if,  in  cases  of  contract,  the  law  imposes  a  duty  towards  third  persons 

who  are  not  parties  to  the  contract,  such  persons  may  recover  in  an 

action  of  tort,  157. 
Liability  of  infants  for  torts,  163. 
Co-tort-feasors ;   how  sued,  169. 

Damages  not  apportioned  among  the  co-tort-feasors,  171. 

In  general,  no  right  of  contribution  exists  between  co-tort-feasors; 

exceptions,  172. 

Indemnity  between  tort-feasors,  176. 
Effect  of  a  release,  178. 
Aiding  and  abetting  the  commission  of  a  tort ;   ratification  of  a  tort,  181. 

CHASE  (2o  ED.)  (v) 


ri  TABLE  OF  CONTENTS. 

Assault  and  Battery,  185. 

Nature  of  an  assault — Difference  between  a  civil  and  a  criminal  assault, 

185. 
Effect  of  accompanying  words  indicating  that  there  is  no  intent  to  do 

actual  violence,  189. 
Nature  of  a  battery,  191. 
Assault  and  battery — Effect  of  consent,  193. 
Justifiable  and  excusable  assaults  and  batteries,  196. 

a.  Self-defense — Defense  of  property,  196. 

b.  Rightful  expulsion  by  carrier  of  passengers,  206. 

c.  Discipline  of  children,  pupils,  etc.,  209. 

d.  Act  of  public  officer  in  performance  of  official  duty,  212. 

False  Imprisonment,  214. 

What  constitutes  false  imprisonment,  214. 
Arrest  upon  void  process,  227. 

1.  Liability  of  magistrate,  227. 

2.  Liability  of  complainant  or  party  suing  out  process,  234. 

3.  Liability  of  officer  making  arrest,  239. 

Arrest  upon  process  voidable  for  "error"  or  "irregularity,"  241. 
Arrest  upon  a  warrant,  where  a  warrant  is  by  law  necessary,  247. 
.Arrest  without  warrant,  249. 

A.  In  cases  of  felony,  249. 

B.  In  cases  of  breach  of  the  peace,  255. 

a.  By  officer,  255. 

b.  By  a  private  person,  259. 

Malicious  Prosecution,  261. 

Elements  of  action,  2G1. 

Difference  between  an   action   for  false  imprisonment  and  one  for   ma- 
licious prosecution,  263. 
Malice,  264. 

Want  of  probable  cause,  267. 
Effect  of  advice  of  counsel,  273. 
Termination  of  the  proceeding,  275. 

Malicious  prosecution  of  a  civil  action — Different  doctrines,  280. 
Malicious  attachment  in  civil  action,  287. 
Malicious  abuse  of  process,  289. 

Conspiracy,  293. 

Slander  and  Libel,  301. 

L  Slander,  301. 

A.  Slander  per  se,  301. 

1.  Charge  of  crime,  301. 

2.  Charge  of  certain  contagious  diseases,  312. 

3.  Charge  affecting  a  man  in  his  office,  profession,  trade, 

employment,  etc.,  314. 

B.  Slander  with  special  damage,  322. 
II.  Libel,  328. 

III.  Malice  in  libel  and  slander,  337. 

IV.  Publication,  340. 

V.  Defense  of  "justification,"  345. 
VI.  Defense  of  "privileged  communication,"  354. 

1.  Qualified  privilege,  354. 

2.  Absolute  privilege,  375. 

VII.  Construction  of  words — Colloquium — Innuendo,  380. 
VIII.  Slander  of  title ;  slander  of  property,  383. 


TABLE  OF  CONTENTS.  Vli 

Trespass  to  Land,  388. 

I.  What  constitutes  a  trespass,  888. 

II.  Trespass  is  an  injury  to  the  possession,  397. 

III.  Trespass  06  initio,  400. 

IV.  Trespass  by  joint  tenant,  402. 

V.  Defenses : — License,  necessity,  etc.,  404. 

Nuisance,  417. 

I.  What  constitutes  a  nuisance — Prescriptive  right  to  maintain  a  nui- 
sance— Injunction  to  restrain,  417. 
II.  Examples  of  nuisances,  430. 

1.  Drainage  of  surface  waters,  430. 

2.  Diversion  and  detention  of  stream,  436. 

3.  Pollution  of  water,  441. 

4.  Noise,  445. 

5.  Keeping  dangerous  substances,  449. 

6.  Obstruction  of  highway,  453. 

III.  Who  responsible,  455. 

IV.  Private  injury  from  public  nuisance,  463. 
V.  Legalized  nuisance,  468. 

VI.  Abatement  of  nuisance,  475. 

Injuries  by  Animals,  483. 

Trespass  to  Personal  Property,  489. 

I.  What  constitutes  a  trespass,  489. 

II.  Is  an  injury  to  the  right  of  possession,  494. 

Conversion  of  Personal  Property,  496. 

I.  What  constitutes  conversion,  496. 

II.  Is  an  injury  to  the  right  of  possession,  509. 

III.  Conversion  by  joint  owner,  513. 

IV.  Demand  and  refusal  as  evidence  of  conversion,  515. 

When  title  passes  in  an  action  of  trover,  523. 

Liability  of  Public  Officers  for  Official  Acts,  525. 

I.  Judicial  officers,  525. 

II.  Ministerial  officers,  539. 

Criminal  Conversation  and  Seduction,  548. 

Negligence,  554. 

I.  Negligence  gives  a  cause  of  action  when  It  violates  a  legal  duty,  554. 

II.  Liability  for  negligence  contrasted  with  absolute  liability,  560. 

III.  Contributory  negligence,  566. 

1.  General  principle,  566. 

2.  Negligence  of  plaintiff  remote,  570. 

3.  Contributory  negligence  of  children  sul  juris,  572. 

4.  Imputation  of  negligence  to  children  non  sui  juris — Different 

theories,  578. 

a.  The  rule  that  a  parent's  negligence  will  be  imputed  to 

his  child,  578. 

b.  The  rule  that  a  parent's  negligence  will  not  be  imputed 

to  his  child,  585. 

5.  Imputation  of  negligence  to  passenger — Former  English'  doc- 

trine now  overruled,  589. 

6.  Effect  of  acting  in  an  emergency,  597. 

7.  Effect  of  acting  under  stress  of  peril  to  human  life,  598. 


Till  TABLE  OF   CONTENTS. 

Negligence — Continued. 

IV.  Liability  of  a  master  for  the  negligence  of  his  servant,  600. 
V.  Liability  of  an  employer  for  the  negligence  of  a  contractor,  60S. 
VI.  Liability  of  master  to  his  servant,  610. 

Injury  Causing  Death,  623. 

Fraud  and  Deceit,  626. 

L  Elements  of  action — Fraudulent  Intent,  626. 

1.  English  rule,  626. 

2.  Massachusetts  rule,  642. 
II.  Fraud  by  silence,  645. 

III.  False  statements  as  to  matters  of  opinion,  648. 

IV.  False  statements  as  to  patent  or  obvious  defects,  657. 

V.  Intent  that  false  statements  be  acted  upon — To  whom  they  may  be 

made,  666. 
VI.  False  statement  must  be  acted  upon  and  damage  result,  672. 

Conflict  of  Laws  in  Regard  to  Torts,  674. 


CASES   REPORTED. 


Page 

Adams,  Forward  v.  (7  Wend.  204). .  314 
Adams,  Proctor  v.  (113  Mass.  376, 

18  Am.  Rep.  500) 407 

Adams,  Youngs  v.  (113  Mich.  199, 

71  N.  W.  585) 351 

Almy  v.  Harris  (5  Johns.  175) 35 

Anderson  v.  Gouldberg  (51  Minn. 

294,  53  N.  W.  636) 510 

Apsley  Rubber  Co.,  White  v.  (181 

Maes.  339,  63  N.  E.  885) 292 

Armory  v.  Delamirie  (1  Strange, 

505)  509 

Atlantic  &  St.  L.  R.  Co.,  Stearns  v. 

(46  Me.  95) 33 

Atlas  S.  S.  Co.,  Wamsley  v.  (168 

N.  Y.  533,  61  N.  E.  896,  85  Am. 

St.  Rep.  699)  500 

Avery,  Eaton,  Cole  &  Burnham  Co. 

v.  (83  N.  Y.  31,  38  Am.  Rep.  389)  666 
Ayers,  Carl  v.  (53  N.  Y.  14) 270 

Backhouse,  Bonomi  T.   (El.,   Bl.  & 

El.  622)  64 

Bailey  v.  Bussing  (28  Conn.  455) . .  172 

Baker,  Moody  v.  (5  Cow.  351) 109 

Ballard  v.  Tomlinson  (L.  R.  29  Ch. 

Div.  115)  442 

Baltimore  City  Pass.  R.  Co.  v. 

Kemp  (61  Md.  619,  48  Am.  Rep. 

134)  132 

Baltimore  &  P.  R.  Co.  v.  Jones  (95 

U.  S.  439,  24  L.  Ed.  506) 566 

Barholt  v.  Wright  (45  Ohio  St.  177, 

12  N.  E.  185,  4  Am.  St.  Rep.  535)  193 
Barker  v.  Stetson  (7  Gray,  53,  66 

Am.  Dec.  457)  234 

Barkley  v.  Wilcox  (86  N.  Y.  140, 

40  Am.  Rep.  519) 430 

Barry,  Slayton  v.  (175  Mass.  513, 

56  N.   E.   574,  49   L.   R,  A.  560, 

78  Am.  St.  Rep.  510) 167 

Barter,  Stilwell  v.  (19  Wend.  487)  352 
Beach,  Scribner  v.  (4  Denio,  448,  47 

Am.  Dec.  265)  196 

Beavan,  Webb  v.  (11  Q.  B.  Div. 

609)  304 

Beehler  v.  Daniels,  Cornell  &  Co. 

(18  R.  I.  563,  29  Atl.  6,  27  L.  R. 

A.  512,  49  Am.  St.  Rep.  790) 558 

Bell  v.  Miller  (5  Ohio,  250) 181 

Berg  v.  Parsons  (156  N.  Y.  109,  50 

N.   E.   957,  41  L.   R.   A.  391,  66 

Am.  St.  Rep.  542) 606 

CHASE  (2o  ED.)  (i: 


Page 

Bessey  v.  Olllot  (T.  Raym.  467). ...  118 
Bigaouette  v.  Paulet  (134  Mass. 

123,  45  Am.  Rep.  307) 548 

Bird  v.  Jones  (7  Adol.  &  E.  [N.  S.] 

742)  214 

Blodgett  v.  Race  (18  Hun,  132)...  227 
Boland,  Freeman  v.  (14  R.  I.  39,  51 

Am.  Rep.  340)  508 

Bonomi  v.  Backhouse  (El.,  Bl.  & 

El.  622)  64 

Booth  v.  Rome,  W.  &  O.  T.  R.  Co. 

(140  N.  Y.  267,  35  N.  E.  592,  24 

L.    R.   A.   105,   37  Am.    St.   Rep. 

552) 51 

Boston  &  A.  R.  Co.,  Stone  v.  (171 

Mass.  536,  51  N.  E.  1,  41  L.  R. 

A.  794)  93 

Boston  &  M.  R.  R.,  Hett  v.  (69  N. 

H.  139,  44  Atl.  910) 520 

Boulester  v.  Parsons  (161  Mass. 

182,  36  N.  E.  790) 80 

Boulware  v.  Craddock  (30  Cal.  190)  544 
Bowen  v.  Hall  (6  Q.  B.  Div.  333) . .  113 
Bradley  v.  Fisher  (13  Wall.  335,  20 

L.  Ed.  646)  525 

Bradstreet,  Sunderlin  v.  (46  N.  Y. 

188,  7  Am.  Rep.  322) 365 

Brame,  Mobile  Life  Ins.  Co.  v.  (95 

U.  S.  754,  24  L.  Ed.  580) 623 

Brantley,  White  v.  (37  Ala.  430) ...  4S9 
Brightman  v.  Inhabitants  of  Bristol 

(65  Me.  426,  20  Am.  Rep.  711). . .  480 
Bromage  v.  Prosser  (4  Barn.  &  C. 

247)  337 

Bronson  v.  Bruce  (59  Mich.  467,  26 

N.  W.  671,  60  Am.  Rep.  307) 369 

Brooklyn  City  R.  Co.,  Mangam  v. 

(38  N.  Y.  455,  98  Am.  Dec.  66). .  578 
Brown  v.  Kendall  (6  Gush.  292) ...  127 

Brown,  Lunt  v.  (13  Me.  236) 494 

Bruce,  Bronson  v.  (59  Mich.  467,  26 

N.  W.  671,  60  Am.  Rep.  307) ...  369 
Buchholz  v.  New  York,  L.  E.  &  W. 

R.  Co.  (148  N.  Y.  640,  43  N.  E. 

76)  67 

Burns  v.  Erben  (40  N.  Y.  463) 249 

Bussing,  Bailey  v.  (28  Conn.  455).  .  172 
Byam  v.  Collins  (111  N.  Y.  143.  19 

N.  E.  75,  2  L.  R.  A.  129,  7  Am. 

St.   Rep.  72G)   358 

Campbell  v.  Race  (7  Cush.  408,  54 
Am,  Dec.  728) 408 


CASES  REPORTED. 


Page 
Campbell  T.  Seaman  (63  N.  Y.  568, 

20  Am.  Eep.  567) 417 

Cardival  v.  Smith  (109  Mass.  158, 

12  Am.  Rep.  682) 275 

Carl  v.  Ayers  (53  N.  Y.  14) 270 

Carr  v.  Fracis  Times  &  Co.  ([1902] 

App.  Cas.  176) 674 

Castle  v.  Houston  (19  Kan.  417,  27 

Am.  Rep.  127) 345 

Central  Park,  N.  &  E.  R.  R.  Co., 

Twomley   v.    (69    N.    Y.    158,   25 

Am.  Rep.  162) 597 

Chambers,  Clark  v.  (3  Q.  B.  Div. 

327)  100 

Chambers,  Dempsey  v.  (154  Mass. 

330,  28  N.  E.  279,  13  L.   R.  A. 

219,  26  Am.  St.  Rep.  249) 182 

Chapman  v.  State  (78  Ala.  463,  56 

Am.  Rep.  42) 185 

Chase  v.  Whitlock  (3  Hill,  139)...  305 
Chesapeake  &  O.  R.  Co.,  Nelson's 

Adm'r  v.   (88  Va.  971,  14  S.  E. 

838,  15  L.  R.  A.  583) 680 

Chicago  West  Division  R.  Co.  v. 

Rend  (6  111.  App.  243) 66 

Chicago  &  R.  I.  R.  Co.,  Halligan  v. ' 

(15  111.  558) 397 

City  of  Dixon  v.  Scott  (181  111.  116, 

54  N.  E.  897) 79 

City  of  Syracuse,  McCarthy  v.  (46 

N.  Y.  194) 539 

Clinton  v.  Myers  (46  N.  Y.  511,  7 

Am.  Rep.  373)  435 

Clark  v.  Chambers  (3  Q.  B.  Div. 

327) 100 

Cole  v.  Turner  (6  Mod.  149) 191 

Cole,  Dexter  v.  (6  Wis.  320) 492 

Collins,  Byam  v.  (Ill  N.  Y.  143,  19 

N.  E.  75,  2  L.  R,  A.  129,  7  Am. 

St  Rep.  726)  ;..  358 

Combs,  Lawrence  v.  (37  N.  H.  331, 

72  Am.  Dec.  332) 414 

Commissioners  of  Asbury  Park, 

Ocean  Grove  Camp  Meeting  Ass'n 

v.  (40  N.  J.  Eq.  447,  3  Atl.  168) . .  57 
Commonwealth  v.  Donahue  (148 

Mass.  529,  20  N.  E.  171,  2  L.  R. 

A.  623,  12  Am.  St.  Rep.  591) 201 

Commonwealth  v.  O'Malley  (131 

Mass.  423)  199 

Congreve  v.  Smith  (18  N.  Y.  79) ...  453 
Coolidge,  Rice  v.  (121  Mass.  393, 

23  Am.  Rep.  279) 25 

Craddock,  Boulware  v.  (30  Cal.  190)  544 
Crown  Point  Iron  Co.,  Larmore  v. 

(101  N.  Y.  391,  4  N.  E.  752,  54 

Am.  Rep.  718) 554 

Crow,  State  v.  (23  N.  C.  375) 189 

Curtice  v.  Thompson  (19  N.  H.  471)  458 
Cutter,  Fresh  v.  (73  Md.  87.  20  Atl. 

774,  10  L.  R.  A.  67,  25  Am.  St. 

Rep.  575) 354 


Page 

Danf orth,  Hager  T.  (20  Barb.  16) .  .  212 
Daniel  v.  Giles  (108  Tenn.  242,  66 

S.  W.  1128) 204 

Daniels,  Cornell  &  Co.,  Beehler  v. 

(18  R.  I.  563,  29  Atl.  6,  27  L.  R. 

A.  512,  49  Am.  St.  Rep.  790) 558 

Davies  v.  Mann  (10  Mees.  &  W. 

545)  570 

Davis,  Sawyer  v.  (136  Mass.  239, 

49  Am.  Rep.  27) 468 

Delamirie,  Armory  v.  (1  Strange, 

505)  509 

Delaware,  L.  &  W.  R.  Co.,  Rounds 

v.   (64  N.  Y.   129,  21   Am.    Rep. 

597)  600 

Delaware  &  H.  Canal  Co.,  Kirby 

v.  (90  Hun,  588,  35  N.  Y.  Supp. 

975)  169 

Dempsey  v.  Chambers  (154  Mass. 

330,  28  N.  E.  279,  13  L.  R.  A. 

219,  26  Am.  St.  Rep.  249) 182 

Dennis,  Frome  v.  (45  N.  J.  Law, 

515)  504 

Derry  v.  Peek  (L.  R.  14  App.  Cas. 

337)  62G 

Devendorf,  Weaver  v.  (3  Denio, 

117)  535 

Devlin,  Morain  v.  (132  Mass.  87, 

42  Am!  Rep.  423) 126 

Dexter  v.  Cole  (6  Wis.  320) 492 

Dole,  Van  Rensselaer  v.  (1  Johns. 

Cas.  279)  310 

Donahue,  Commonwealth  v.  (148 

Mass.  529,  20  N.  E.  171,  2  L.  R. 

A.  623,  12  Am.  St.  Rep.  591) 201 

Donnell,  Hatch  v.  (74  Me.  163) 388 

Dowdney,  Fowler  v.  (2  Moody  &  R. 

119)  308 

Dowling,  Fisher  v.  (66  Mich.  370, 

33  N.  W.  521) 43 

Driscoll,  Gilmore  v.  (122  Mass.  199, 

23  Am.  Rep.  312) 44 

Dubois,  Wilson  v.  (35  Minn.  471,  29 

N.  W.  68,  59  Am.  Rep.  335) 385 

Dunlop,  Harvey  v.  (Hill  &  D. 

Supp.  193)  130 

Dupee  v.  Lentine  (147  Mass.  580, 

18  N.  E.  465) 205 

Duxbury,  Hunnewell  v.  (154  Mass. 

286,  28  N.  E.  267,   13  L.  R.  A. 

733)   669 

Earl,  Gidney  v.  (12  Wend.  98) 389 

Eastman,  Moore  v.  (1  Hun,  578) .  .  165 
Eaton,  Cole  &  Burnham  Co.  v.  Av- 

ery    (83   N.   Y.  31,   38   Am.    Rep. 

389)  666 

Eckert  v.  Long  Island  R.  Co.  (43 

N.  Y.  502,  3  Am.  Rep.  721) 598 

Ellenwood  v.  Marietta  Chair  Co. 

(158  U.  S.  105,  15  Sup.  Ct.  771, 

39  L.  Ed.  913) 679 


CASES  REPORTED. 


XI 


Page 
Elliott,  Rogers  v.  (146  Mass.  349, 

15  N.  E.  768,  4  Am.  St.  Rep.  316)  445 
Elsemore  v.  Longfellow  (76  Me. 

128)  239 

Emery  v.  Hapgood  (7  Gray,  55,  66 

Am.  Dec.  459)  235 

Engelhardt  v.  State  (88  Ala.  100,  7 

South.  154)  191 

Engelhardt,  Homer  v.  (117  Mass. 

539)  336 

Engel,  Huchting  v.  (17  Wis.  230) . .  163 

Erben,  Burns  v.  (40  N.  Y.  463) 249 

Estelle,  Howitt  v.  (92  111.  218) 515 

Ferguson,  Foshay  v.  (2  Denio,  617)  267 
Fischer  v.  Langbein  (103  N.  Y.  84, 

8  N.  E.  251) 241 

Fisher  v.  Dowling  (66  Mich.  370,  33 

N.  W.  521) 43 

Fisher,  Bradley  v.  (13  Wall.  335, 

20  L.  Ed.  646) 525 

Forward  v.  Adams  (7  Wend.  204).  .  314 
Foshay  v.  Ferguson  (2  Denio,  617)  267 
Foster,  Trustees  of  Village  of  Can- 

andaigua  v.  (81  Hun,   147,  30  N. 

Y.  Supp.  686)  176 

Foster  Min.  Co.,  Pantzar  v.  (99  N. 

Y.  368,  2  N.  E.  24) 610 

Fow  v.  Roberts  (108  Pa.  489) 455 

Fowler  v.  Dowdney.(2  Moody  &  R. 

119)  308 

Fracis  Times  &  Co.,  Carr  v. 

([1902]  App.  Cas.  176) 674 

Francis,  Moore  v.  (121  N.  Y.  199, 

23  N.  E.  1127,  8  L.  R.  A.  214,  18 

Am.  St.  Rep.  810) 331 

Freeman  v.  Boland  (14  R.  I.  39,  51 

Am.  Rep.  340) 508 

Freeman,  Pasley  v.  (3  Term  R.  51)  71 
Fresh  v.  Cutter  (73  Md.  87,  20  Atl. 

774,  10  L.  R.  A.  67,  25  Am.  St. 

Rep.  575)  354 

Frome  v.  Dennis  (45  N.  J.  Law, 

515)  504 

Gibney  v.  State  (137  N.  Y.  1,  33  N. 

E.  142,  19  L.  R.  A.  365,  33  Am. 

St.  Rep.  690)  91 

Gidney  v.  Earl  (12  Wend.  98) 389 

Giles  v.  Simonds  (15  Gray,  441,  77 

Am.  Dec.  373)  404 

Giles.  Daniel  v.  (108  Tenn.  242,  66 

S.  .W.  1128) 204 

Gilman,  McDonough  v.  (3  Allen, 

264,  80  Am.  Dec.  72) 460 

Gilmore  v.  Driscoll  (122  Mass.  199, 

23  Am.  Rep.  312) 44 

Gilmore  v.  Newton  (9  Allen,  171,  85 

Am.  Dec.  749)  516 

Glidden,  Pullen  v.  (66  Me.  202)...  264 
Golderman  v.  Stearns  (7  Gray,  181)  312 
Goldman,  Kujek  v.  (150  N.  Y.  176, 

44  N.  E.  773,  34  L.  R.  A.  156,  55 

Am.  St.  Rep.  670) 21 


Page 

Gordon  v.  Harper  (7  Term  R.  9). ..  511 
Gorham  v.  Ives  (2  Wend.  534) ....  308 
Gott  v.  Pulsifer  (122  Mass.  235,  23 

Am.  Rep.  322) 69 

Gouldberg,  Anderson  v.  (51  Minn. 

294,  53  N.  W.  636) 510 

Grainger  v.  Hill  (4  Bing.  N.  C.  212)  289 

Gramlich  v.  Wurst  (86  Pa.  74) 9 

Grigsby  v.  Stapleton  (94  Mo.  423,  7 

S.  W.  421)  645 

Grove  v.  Van  Duyn  (44  N.  J.  Law, 

654,  43  Am.  Rep.  412) 229 

Guest  v.  Reynolds  (68  111.  478) 1 

Guille  v.  Swan  (19  Johns.  381,  10 

Am.  Dec.  234) 119 

Guilleaume  v.  Rowe  (94  N.  Y.  268, 

46  Am.  Rep.  141) 237 

Gunther  v.  Lee  (45  Md.  60,  24  Am. 

Rep.  504) 178 

Hackett,  Little  v.  (116  U.  S.  366,  6 

Sup.  Ct.  391,  29  L.  Ed.  652) 589 

Hager  v.  Danforth  (20  Barb.  16)..  212 
Hagget,  Hobart  v.  (12  Me.  67,  28 

Am.  Dec.  159) 490 

Hall,  Bowen  v.  (6  Q.  B.  Div.  333)  113 
Halligan  v.  Chicago  &  R.  I.  R.  Co. 

(15  111.  558) 397 

Hall.  Murray  v.  (7  Man.  G.  &  S. 

441)  402 

Hall,  Siordet  v.  (4  Bing.  607) 82 

Hanson,  Pike  v.  (9  N.  H.  491) 220 

Hapgood,  Emery  v.  (7  Gray,  55,  66 

Am.  Dec.  459) 235 

Harper,  Gordon  v.  (7  Term  R.  9). . .  511 
Harris,  Almy  v.  (5  Johns.  175) ...  35 

Harris,  Secor  v.  (18  Barb.  425) 319 

Harvey  v.  Dunlop  (Hill  &  D.  Supp. 

193)  130 

Harwood  v.  Siphers  (70  Me.  464). .  247 

Hatch  v.  Donnell  (74  Me.  163) 388 

Hayden,  Keegan  Y.  (14  R.  I.  175) . .  171 
Heeg  v.  Licht  (80  N.  Y.  579,  36 

Am.  Rep.  654) 449 

Heisel,  Quinn  v.  (40  Mich.  576) 255 

Hett  v.  Boston  &  M.  R.  R.  (69  N. 

H.  139,  44  Atl.  910) 520 

Hickey  v.  Morrell  (102  N.  Y.  454, 

7  N.  E.  321,  55  Am.  Rep.  824).  . .  648 
Hill,  Grainger  v.  (4  Bing.  N.  C.  212)  289 
Hill  £  Co.,  Pullman  v.  ([1891]  1  Q. 

B.  524)  341 

Kingston  v.  L.  P.  &  J.  A.  Smith 

Co.    (114  Fed.   294,  52  C.  C.  A. 

206) 6G2 

Hobart  v.  Hagget  (12  Me.  67,  28 

Am.  Dec.  159)  490 

Hobbs  v.  Ray  (18  R.  I.  84,  25  Atl. 

G94)  263 

Homer  v.  Engelhardt  (117  Mass. 

539)  336 

Hough  v.  Texas  &  P.  R.  Co.  (100 

U.  S.  213,  25  L.  Ed.  612) 615 


rii 


CASES  REPORTED. 


Page 
Houston,  Castle  T.  (19  Kan.  417,  27 

Am.  Rep.  127) 345 

Howitt  v.  Estelle  (92  111.  218) 515 

Huchting  v.  Engel  (17  Wis.  230) ...  163 
Humphrey  T.  Merriam  (32  Minn. 

197,  20  N.  W.  138) 672 

Hunnewell  v.  Duxbury  (154  Mass. 

286,  28  N.  E.  267,  13  L.  R.  A. 

733)  669 

Hutchinson,  Litchfield  v.  (117  Mass. 

195)  642 

Hyde,  Miller  v.  (161  Mass.  473,  37 

N.  E.  760,  25  L.  R.  A.  42,  42  Am. 

St.  Rep.  424)  523 

Illinois  Cent.  R.  Co.  v.  Whittemore 
(43  111.  420,  92  Am.  Dec.  138). ..  206 

Inhabitants  of  Bristol,  Brightman  v. 
(65  Me.  426,  20  Am.  Rep.  711). . .  480 

Ireland  v.  McGarvish  (1  Sandf. 
155) 316 

Ives,  Gorham  v.  (2  Wend.  534)....  308 

Jones  v.  Williams  (11  Mees.  &  W. 

176)  475 

Jones,  Baltimore  &  P.  R.  Co.  v.  (95 

TJ.  S.  439,  24  L.  Ed.  506) 566 

Jones,  Bird  v.  (7  Adol.  &  E.  [N.  S.] 

742)   214 

Keegan  T.  Hayden  (14  R.  I.  175). .  171 
Keenan  v.  Southworth  (110  Mass. 

474,  14  Am.  Rep.  613) 543 

Kellogg,  Milwaukee  &  St.  P.  R.  Co. 

v.  (94  U.  S.  469,  24  L.  Ed.  256). .     75 
Kemp,  Baltimore  City  Pass.  R.  Co. 
v.  (61  Md.  619,  48  Am.  Rep.  134)  132 

Kendall  v.  Stone  (5  N.  Y.  14) 383 

Kendall,  Brown  v.  (6  Gush.  292)..  127 
Kirby  v.  President,  etc.,  of   Dela- 
ware &  H.  Canal  Co.  (90  Hun, 

588,  35  N.  Y.  Supp.  975) 169 

Kujek  v.  Goldman  (150  N.  Y.  176, 
44  N.  E.  773,  34  L.  R.  A.  156,  55 
Am.  St.  Rep.  670) 21 

Lamb  v.  Stone  (11  Pick.  527) 15 

Langbein,  Fischer  v.  (103  N.  Y.  84, 

8  N.  E.  251)  241 

Larmore  v.  Crown  Point  Iron  Co. 

(101  N.  Y.  391,  4  N.  E.  752,  54 

Am.  Rep.  718) 554 

Laverty  v.  Snethen  (68  N.  Y.  522, 

23  Am.  Rep.  184) 496 

Lawrence  v.  Combs  (37  N.  H.  331, 

72  Am.  Dec.  332) 414 

Leathern,  Quinn  v.  ([1901]  App. 

Cas.  495)  297 

Lee,  Gunther  v.  (45  Md.  60,  24  Am. 

Rep.  504) 178 

Le  Forest  v.  Tolman  (117  Mass. 

109,  19  Am.  Rep.  400) 676 


Page 
Lentine,  Dupee  T.  (147  Mass.  580, 

18  N.  E.  465) 205 

Licht,  Heeg  v.  (80  N.  Y.  579,  36 

Am.  Rep.  654)  449 

Litchfield  T.  Hutchinson  (117  Mass. 

195)  642 

Little  v.  Hackett  (116  U.  S.  366,  6 

Sup.  Ct.  391,  29  L.  Ed.  652) 589 

Lombard,  Merrifield  v.  (13  Allen, 

16,  90  Am.  Dec.  172) 441 

Long  v.  Warren  (68  N.  Y.  426) 657 

Longfellow,  Elsemore  v.  (76  Me. 

128)  239 

Long  Island  R.  Co.,  Eckert  v.  (43 

N.  Y.  502,  3  Am.  Rep.  721) 598 

Loomis,  McGarry  v.  (63  N.  Y.  104, 

20  Am.  Rep.  510) 582 

Lowery  v.  Manhattan  R.  Co.  (99  N. 

Y.  158,  1  N.  E.  60S,  52  Am.  Rep.     , 

12)  87 

L.  P.  &  J.  A.  Smith  Co.,  Kingston 

v.  (114  Fed.  294,  52  C.  C.  A.  206)  662 

Lunt  v.  Brown  (13  Me.  236) 494 

Lyke,  Van  Leuven  v.  (1  N.  Y.  515, 

49  Am.  Dec.  346) 394 

Lynch   v.   Metropolitan   El.   R.   Co. 

(90  N.  Y.  77,  43  Am.  Rep.  141). .  222 
Lynch  v.  Murphy  (171  Mass.  307, 

50  N.  E.  623) 654 

McCarthy  v.  City  of  Syracuse  (46 

N.  Y.  194)  539 

McDonough  v.  Gilman  (3  Allen, 

264,  80  Am.  Dec.  72) 460 

McGarry  v.  Loomis  (63  N.  Y.  104, 

20  Am.  Rep.  510) 582 

McGarvish,  Ireland  v.  (1  Sandf. 

155)  316 

Mclntyre  v.  Sholty  (121  111.  660,  13 

N.  E.  239,  2  Am.  St.  Rep.  140). .  123 
McKesson,  Muller  v.  (73  N.  Y.  195, 

29  Am.  Rep.  123) 483 

McQueen,  White  v.  (96  Mich.  249, 

55  N.  W.  843) 252 

Mangam  v.  Brooklyn  City  R.  Co. 

(38  N.  Y.  455,  98  Am.  Dec.  66) . .  578 
Manhattan  R.  Co.,  Lowery  v.  (99 

N.  Y.  158,  1  N.  E.  608,  52  Am. 

Rep.  12) 87 

Mann,  Davies  v.  (10  Mees.  &  W. 

545)  570 

Manufacturers'  Nat.  Bank.  Moore 

v.  (123  N.  Y.  420,  25  N.  E.  1048, 

11  L.  R.  A.  753) 375 

Marietta  Chair  Co.,  Ellenwood  v. 

(158  U.  S.  105,  15  Sup.  Ct.  771, 

39  L.  Ed.  913) 679 

Marshall  v.  Welwood  (38  N.  J. 

Law,  339,  20  Am.  Dec.  394) 5GO 

Merriam,  Humphrey  v.  (32  Minn. 

197,  20  N.  W.  138) 672 


CASES  REPORTED. 


xiii 


Page 
Merrifield  v.  Lombard  (13  Allen, 

16,  90  Am.  Dec.  172) 441 

Metropolitan  El.  R.  Co.,  Lynch  T. 

(90  N.  Y.  77,  43  Am.  Rep.  141). .  222 
Michigan  Buggy  Co.,  Smith  v.  (175 

111.  619,  51  N.  B.  569,  67  Am.  St. 

Rep.  242)  280 

Miller  v.  Hyde  (161  Mass.  473,  37 

N.  E.  760,  25  L.  R.  A.  42,  42  Am. 

St.  Rep.  424) 523 

Miller  v.  Milligan  (48  Barb.  30)...  261 
Miller  v.  Woodhead  (104  N.  Y.  471, 

11  N.  B.  57) 7 

Miller,  Bell  v.  (5  Ohio,  250) 181 

Miller,  Young  v.  (3  Hill,  21) 301 

Milligan,  Miller  v.  (48  Barb.  30). ..  261 
Millward,  Mulvehall  v.  (11  N.  Y. 

343)  551 

Milwaukee  &  St.  P.  R.  Co.  v.  Kel- 
logg (94  U.  S.  469,  24  L.  Ed.  256)  75 
Mobile  Life  Ins.  Co.  v.  Brame  (95 

U.  S.  754,  24  L.  Ed.  580) 623 

Moody  v.  Baker  (5  Cow.  351) 109 

Moore  v.  Eastman  (1  Hun,  578) ...  165 
Moore  v.  Francis  (121  N.  Y.  199,  23 

N.  E.   1127,  8  L.  R.  A.  214,   18 

Am.  St.  Rep.  810) 331 

Moore  v.  Manufacturers'  Nat.  Bank 

(123  N.  Y.  420,  25  N.  E.  1048,  11 

L.  R.  A.  753) 375 

Morain  v.  Devlin  (132  Mass.  87,  42 

Am.  Rep.  423)  126 

Morgan  v.  Vale  of  Neath  R.  Co.  (5 

Best  &  S.  570,  L.  R.  1  Q.  B.  149)  617 
Morrell,  Hickey  v.  (102  N.  Y.  454, 

7  N.  E.  321,  55  Am.  Rep.  824) .  .  648 
Mortin  v.  Shoppee  (3  Carr.  &  P. 

373)  187 

Mulledy,  Willy  v.  (78  N.  Y.  310,  34 

Am.  Rep.  536)  28 

Muller  v.  McKesson  (73  N.  Y.  195, 

29  Am.  Rep.  123) 483 

Mulvehall  v.  Millward  (11  N.  Y. 

343) 551 

Munger,  Terry  v.  (121  N.  Y.  161,  24 

N.  E.  272,  8  L.  R.  A.  216,  18  Am. 

St.  Rep.  803) 139 

Murphy,  Lynch  v*  (171  Mass.  307, 

50  N.  E.  623)  654 

Murray  v.  Hall  (7  Man.  G.  &  S. 

441)  402 

Myers,  Clinton  v.  (46  N.  Y.  511,  7 

Am.  Rep.  373)  435 

Myers,  Stephens  v.  (4  Carr.  &  P. 

349)   188 

National  Bank  of  Commerce  of  Ta- 
coma,  Wade  v.  (114  Fed.  377) ...  285 

Nelson's  Adm'r  v.  Chesapeake  &  O. 
R.  Co.  (88  Va.  971,  14  S.  E.  838, 
15  L.  R.  A.  583) 680 

Newkirk  v.  Sabler  (9  Barb.  652). ..  391 


Pag« 
Newman  v.  Phillipsburg  Horse-Car 

R.  Co.  (52  N.  J.  Law,  446,  19  Atl. 

1102,  8  L.  R.  A.  842) 585 

Newton,  Gilmore  v.  (9  Allen,  171, 

85  Am.  Dec.  749) 516 

New  York  Cent.  &  H.  R.  R.  Co., 

Rich  v.  (87  N.  Y.  382) 142 

New  York,  L.  E.  &  W.  R.  Co., 

Buchholz  v.  (148  N.  Y.  640,  43  N. 

E.  76)  67 

Ocean  Grove  Camp  Meeting  Ass'n 
v.  Commissioners  of  Asbury  Park 

(40  N.  J.  Eq.  447,  3  Atl.  168) 57 

Oliver,  Weld  v.  (21  Pick.  559) 513 

Olliot,  Bessey  v.  (T.  Raym.  467) . .  118 
O'Malley,  Commonwealth  v.  (131 

Mass.  423) 199 

Osborn,  Wall  v.  (12  Wend.  39) 493 

Pantzar  v.   Tilly   Foster   Min.   Co. 

(99  N.  Y.  368,  2  N.  E.  24) 610 

Parsons,  Berg  v.  (156  N.  Y.  109,  50 

N.  E.  957,  41  L.  R.  A.  391,  66 

Am.  St.  Rep.  542) 606 

Parsons,  Boulester  v.  (161  Mass. 

182,  36  N.  E.  790) 80 

Pasley  v.  Freeman  (3  Term  R.  51)  71 
Paulet,  Bigaouette  v.  (134  Mass. 

123,  45  Am.  Rep.  307) 548 

Pease  v.  Smith  (61  N.  Y.  477)....  121 
Peek,  Derry  v.  (L.  R.  14  App.  Cas. 

337)  626 

People  v.  Warren  (5  Hill,  440) 546 

Phillips  v.  Trull  (11  Johns.  486).  ..  259 
Phillipsburg  Horse-Car  R.  Co., 

Newman  v.  (52  N.  J.  Law,  446, 

19  Atl.  1102,  8  L.  R.  A.  842) 585 

Pike  v.  Hanson  (9  N.  H.  491) 220 

Portland  Mfg.  Co.,  Webb  v.  (3 

Sumn.  189,  Fed.  Cas.  No.  17,322)  36 
Prescott,  Woodman  v.  (66  N.  H. 

375,  22  Atl.  456) 278 

President,  etc.,  of  Delaware  &  H. 

Canal  Co.,  Kirby  v.  (90  Hun,  588, 

35  N.  Y.  Supp.  975) 169 

Proctor  v.  Adams  (113  Mass.  376, 

18  Am.  Rep.  500) 407 

Prosser,  Bromage  v.  (4  Barn.  &  C. 

247)  337 

Pullen  v.  Glidden  (66  Me.  202) 264 

Pullman  v.  Walter  Hill  &  Co. 

([1891]  1  Q.  B.  524) 341 

Pulsifer,  Gott  v.  (122  Mass.  235,  23 

Am.  Rep.  322) 69 

Quinn  v.  Heisel  (40  Mich.  576) 255 

Quinn  v.  Leathern  ([1901]  App.  Cas. 


495) 


297 


Race,  Blodgett  v.  (18  Hun,  132).  ..   227 


Race,  Campbell  v.  (7  Gush.  408,  54 
Am.  Dec.  728). 


408 


CASES  REPORTED. 


Page 
Ray,  Hobbs  v.  (18  R,  I.  84,  25  Atl. 

694)  263 

Rend,  Chicago  West  Division  R. 

Co.  v.  (6  111.  App.  243) 66 

Reynolds,  Guest  v.  (68  111.  478)...  1 
Reynolds,  Stitzell  v.  (59  Pa.  488) . .  380 
Rice  v.  Coolidga  (121  Mass.  393, 

23  Am.  Rep.  279) 25 

Rice.  Zinn  v.  (154  Mass.  1,  27  N.  E. 

772,  12  L.  R.  A.  288) 287 

Rich  v.  New  York  Cent.  &  H.  R. 

R.  Co.  (87  N.  Y.  382) 142 

Robbins,  Tillson  v.  (68  Me.  295,  28 

Am.  Rep.  50)  328 

Roberts  v.  Roberts  (5  Best  &  S. 

384)  60 

Roberts,  Fow  v.  (108  Pa.  489) 455 

Rogers  v.  Elliott  (146  Mass.  349,  15 

N.  E.  768,  4  Am.  St.  Rep.  316). ..  445 
Rome,  W.  &  0.  T.  R.  Co..  Booth  v. 

(140  N.  Y.  267,  35  N.  E.  592,  24 

L.  R.  A.  105,   37  Am.   St.   Rep. 

552)  51 

Rounds  v.  Delaware,  L.  &  W.  R. 

Co.   (64  N.  Y.  129,  21  Am.  Rep. 

597)  600 

Rowe,  Guilleaume  v.  (94  N.  Y.  268, 

46  Am.  Rep.  141) 237 

Sabler,  Newkirk  v.  (9  Barb.  652). . .  391 
St.  Helen's  Smelting  Co.  v.  Tipping 

(11  H.  L.  Cas.  642) 425 

Salt  Springs  Nat.  Bank  v.  Wheeler 

(48  N.  Y.  492,  8  Am.  Rep.  564).  .  518 
Sample,  Walter  v.  (25  Pa.  275)...  273 
Sawyer  v.  Davis  (136  Mass.  239,  49 

Am.  Rep.  27)  468 

Scott,  City  of  Dixon  v.  (181  111.  116, 

54  N.  E.  897) 79 

Scribner  v.  Beach  (4  Denio,  448,  47 

Am.  Dec.  265) 196 

Seaman,  Campbell  v.  (63  N.  Y.  568, 

20  Am.  Rep.  567) 417 

Secor  v.  Harris  (18  Barb.  425) 319 

Sheehan  v.  Sturges  (53  Conn.  481, 

2  Atl.  841)  209 

Sheffill  v.  Van  Deusen  (13  Gray, 

304,  74  Am.  Dec.  632) 340 

Sholty,  Mclntyre  v.  (121  111.  660,  13 

N.  E.  239.  2  Am.  St.  Rep.  140).  . .  123 
Shoppee,  Mortin  v.  (3  Carr.  &  P. 

373) 187 

Simonds,  Giles  v.  (15  Gray,  441,  77 

Am.  Dec.  373)  404 

Siordet  v.  Hall  (4  Bing.  607) 82 

Siphers.  Harwood  v.  (70  Me.  464).  .  247 
Six  Carpenters'  Case  (8  Coke,  146a, 

1  Smith,  Lead.  Cas.  62) 400 

Slayton  v.  .Barry  (175  Mass.  513,  56 

N.  E.   574,  49  L.   R.  A.  560,   78 

Am.  St.  Rep.  510) 167 

Smith  v.  Michigan  Buggy  Co.  (175 

111.  619,  51  N.  E.  569,  67  Am.  St. 

Rep.  242) 280 


Smith,  Cardival  v.  (109  Mass.  158, 

12  Am.  Rep.  682)  275 

Smith  Co.,  Hingstqn  v.  (114  Fed. 

294,  52  C.  C.  A.  200) 662 

Smith,  Congreve  v.  (18  N.  Y.  79) ...  453 
Smith,  Pease  v.  (61  N.  Y.  477)...  12] 
Snethen,  Laverty  v.  (68  N.  Y.  522, 

23  Am.  Rep.  184) 496 

Southworth,  Keenan  v.  (110  Mass. 

474,  14  Am.  Rep.  613) 543 

Spencer,  Williams  v.  (5  Johns.  352)  411 
Stapleton,  Grigsby  v.  (94  Mo.  423, 

7  S.  W.  421) 645 

State  v.  Crow  (23  N.  C.  375) 189 

State  v.  White  (18  R.  I.  473,  28  Atl. 

968)  477 

State,  Chapman  v.  (78  Ala.  463,  56 

Am.  Rep.  42) 185 

State,  Engelhardt  v.  (88  Ala.  100, 

7  South.  154)  191 

State,  Gibney  v.  (137  N.  Y.  1,  33  N. 

E.  142,  19  L.  R.  A.  365,  33  Am. 

St.  Rep.  690)  91 

Stearns  v.  Atlantic  &  St.  L.  R.  Co. 

(46  Me.  95)  33 

Stearns,  Golderman  v.  (7  Gray, 

181)  312 

Stephens  v.  Myers  (4  Carr.  &  P. 

349)  188 

Stetson.  Barker  v.  (7  Gray,  53,  66 

Am.  Dec.  457)  234 

Stilwell  v.  Barter  (19  Wend.  487). .  352 
Stitzell  v.  Reynolds  (59  Pa.  488) ...  380 
Stone  v.  Boston  &  A.  R.  Co.  (171 

Mass.  536,  51  N.  E.  1,  41  L.  R. 

A.  794)  93 

Stone,  Kendall  v.  (5  N.  Y.  14) 383 

Stone,  Lamb  v.  (11  Pick.  527).  i . .  .  15 
Sturges,  Sheehan  v.  (53  Conn.  481, 

2  Atl.  841)  209 

Sunderlin  v.  Bradstreet  (46  N.  Y. 

188,  7  Am.  Rep.  322) 365 

Swan,  Guille  v.  (19  Johns.  381,  10 

Am.  Dec.  234)   119 

Terry  v.  Munger  (121  N.  Y.  161.  24 

N.  E.  272,  8  L.  R.  A.  216,  18  Am. 

St.  Rep.  803) 139 

Terwilliger  v.  Wands  (17  N.  Y.  54, 

72  Am.  Dec.  420) 322 

Texas  &  P.  R.  Co.,  Hough  v.  (100 

U.  S.  213.  25  L.  Ed.  612) 615 

Thomas  v.  Winchester  (6  N.  Y.  397, 

57  Am.  Dec.  455) 157 

Thompson,  Curtice  v.  (19  N.  H. 

471)  458 

Tillett  v.  Ward  (10  Q.  B.  Div.  17)  412 
Tillson  v.  Robbins  (68  Me.  295,  28 

Am.  Rep.  50) 32S 

Tilly  Foster  Min.  Co.,  Pantzar  v. 

(99  N.  Y.  308.  2  N.  E.  24) 610 

Times  &  Co.,  Carr  v.  ([1902]  App. 

Cas.  176) 674 


CASES   REPORTED. 


Page 
Tipping,  St.  Helen's  Smelting  Co.  v. 

(11  H.  L.  Ca3.  642) 425 

Tolman,  Le  Forest  v.  (117  Mass. 

109,  19  Am.  Rep.  400) 676 

Tomlinson,  Ballard  v.  (L.  R.  29  Ch. 

Div.  115)  442 

Truax,  Vandenburgh  v.  (4  Denio, 

464,  47  Am.  Dec.  268) 84 

Trull,  Phillips  v.  (11  Johns.  486) ...  259 
Trustees  of  Village  of  Canandaigua 

v.  Foster  (81  Hun,  147,  30  N.  Y. 

Supp.  686) 176 

Turner,  Cole  v.  (6  Mod.  149) 191 

Twist  v.  Winona  &  St.  P.  R.  Co. 

(39  Minn.  164,  39  N.  W.  402,  12 

Am.  St.  Rep.  626) 572 

Twomley  v.  Central  Park,  N.  &  E. 

R.  R.  Co.  (69  N.  X.  158,  25  Am. 

Rep.  162)  597 

Vale  of  Neath  R.  Co.,  Morgan  v.  (5 

Best  &  S.  570.  L.  R.  1  Q.  B.  149)  617 
Van  Ankin  v.  Westfall  (14  Johns. 

233) 307 

Vandenburgh  v.  Truax  (4  Denio, 

464,  47  Am.  Dec.  268) 84 

Van  Deusen,  Sheffill  v.  (13  Gray, 

304,  74  Am.  Dec.  632) 340 

Van  Duyn,  Grove  v.  (44  N.  J.  Law, 

654,  43  Am.  Rep.  412) 229 

Van  Horn  v.  Van  Horn  (52  N.  J. 

Law,  284,  20  Atl.  485,  10  L.  R. 

A.  184)  293 

Van  Leuven  v.  Lyke  (1  N.  Y.  515, 

49  Am.  Dec.  346) 394 

Van  Rensselaer  v.  Dole  (1  Johns. 

Cas.  279)  310 

Wade  v.    National   Bank   of   Com- 
merce of  Tacoma  (114  Fed.  377). .  285 

Wall  v.  Osborn  (12  Wend.  39) 493 

Walter  v.  Sample  (25  Pa.  275) 273 

Walter    Hill    &    Co.,    Pullman    v. 

([1891]  1  Q.  B.  524) 341 

Wamsley  v.  Atlas  S.  S.  Co.  (168  N. 
Y.  533.  61  N.  E.  896,  85  Am.  St. 

Rep.  699) 500 

Wands,  Terwilliger  v.  (17  N.  Y.  54, 

72  Am.  Dec.  420) 322 

Ward,  Tillett  v.  (10  Q.  B.  Div.  17)  412 
Warren,  Long  v.  (68  N.  Y.  426).  . .  657 

Warren,  People  v.  (5  Hill,  440) 546 

Washburn  Iron  Co.,  Wesson  v.  (13 

Allen,  95,  90  Am.  Dec.  181) 463 

Weaver    v.    Devendorf     (3    Denio, 

117) 535 

Webb  T.  Beavan  (11  Q.  B.  Div.  609)  304 
Webb  v.  Portland  Mfg.  Co.  (3 

Sumn.  189,  Fed.  Cas.  No.  17,322)  36 
Weld  v.  Oliver  (21  Pick.  559) 513 


Page 
Welsh  v.  Wilson  (34  Minn.  92,  24 

N.  W.  327)  545 

Welwood,  Marshall  v.  (38  N.  J. 

Law,  339,  20  Am.  Dec.  394) 560 

Wesson  v.  Washb,urn  Iron  Co.  (13 

Allen,  95,  90  Am.  Dec.  181) 463 

Westfall,  Van  Ankin  v.  (14  Johns. 

233)  307 

Wheeler,  Salt  Springs  Nat.  Bank  v. 

(48  N.  Y.  492,  8  Am.  Rep.  564). .  518 
White  v.  Apsley  Rubber  Co.  (181 

Mass.  339,  63  N.  E.  885) 292 

White  v.  Brantley  (37  Ala.  430). . .  489 
White  v.  McQueen  (96  Mich.  249, 

55  N.  W.  843) 252 

White,  State  v.  (18  R.  I.  473,  28 

Atl.  968)  477 

Whitlock,  Chase  v.  (3  Hill,  139). ..  305 
Whittemore,  Illinois  Cent.  R.  Co.  v. 

(43  111.  420.  92  Am.  Dec.  138). ..  206 
Wilcox,  Barkley  v.  (86  N.  Y.  140, 

40  Am.  Rep.  519) 430 

Williams  v.  Spencer  (5  Johns.  352)  411 
Williams,  Jones  v.  (11  Mees.  &  W. 

176)  475 

Willy  v.  Mulledy  (78  N.  Y.  310,  34 

Am.  Rep.  536)  28 

Wilson  v.  Dubois  (35  Minn.  471,  29 

N.  W.  68,  59  Am.  Rep.  335) 385 

Wilson,  Welsh  v.  (34  Minn.  92,  24 

N.  W.  327)  545 

Wiman,  Woods  v.  (122  N.  Y.  445, 

25  N.  E.  919)  373 

Winchester,  Thomas  v.  (6  N.  Y. 

397,  57  Am.  Dec.  455) 157 

Winona  &  St.  P.  R.  Co.,  Twist  v. 

(39  Minn.  164,  39  N.  W.  402,  12 

Am.  St.  Rep.  626) 572 

Winterbottom  v.  Wright  (10  Mees. 

&  W.  109) 151 

Woodhead,  Miller  T.  (104  N.  Y. 

471,  11  N.  E.  57) 7 

Woodman  v.  Prescott  (66  N.  H. 

375,  22  Atl.  456) 278 

Woods  v.  Wiman  (122  N.  Y.  445,  25 

N.  E.  919)  373 

Wright,  Barholt  v.  (45  Ohio  St. 

177,  12  N.  E.  185,  4  Am.  St.  Rep. 

535)  193 

Wright,  Winterbottom  v.  (10  Mees. 

&  W.  109) 151 

Wurst,  Gramlich  v.  (86  Pa.  74)...  9 

Young  v.  Miller  (3  Hill,  21) 301 

Youngs  v.   Adams  (113  Mich.   199, 
71  N.  W.  585) 351 

Zinn  v.  Rice  (154  Mass.  1,  27  N.  E. 
772,  12  L.  R.  A.  288) 287 


[Titles  marked  by  a  dagger  (thus,  t)  refer  to  cases  cited  by  the  editor  and  author* 
Ities  cited  by  counsel.] 


Pa'ge 
Abbott  V.  Bank,  175  U.  S.  409,  20  Sup. 

Ct.   153,  44  L.   Ed.  217,  20  Wash.  552,  56 

Pac.  376 286 

Abbott  v.  Blossom,  66  Barb.  353 140 

Abbott  v.  Macfle,  2  Hurl.  &  C.  744,  33 

Law  J.  Exch.  177 104 

tAbrabams  v.  Deakin  (1891)  1  Q.  B.  516  226 
tAbrath  v.  Railroad  Co.,  11  Q.  B.  D.  440; 

L.  R.  11  App.  Gas.  247 263 

Absor  v.  French,  2  Show.  28 392,  409 

Achtenhagen  v.  Watertown,  18  Wis.  331, 

84  Am.  Dec.  769 575 

Acker  v.  Campbell,  23  Wend.  372 544 

Ackerley  v.  Parkinson,  3  Maule  &  S.  411  531 

tAckroyd  v.  Ackroyd,  3  Daly,  38 246 

Acton  T.  Blundell,  12  Mees.  &  W.  324.. 59,  433 
Adams  v.  Freeman,  9  Johns.  117,  118...  183 

Adams  v.  Paige,  7  Pick.  542 19,  20 

Adams  v.  Popham,  76  N.  Y.  410 69 

t Adams  T.  Richardson,  43  N.  H.  212...  36 

t  Adams  v.  Rivers,  11  Barb.  390 402 

Adams  v.  Waggoner,  33  Ind.  531,  5  Am. 

Rep.  230 193,  195 

fAdams  v.  Young,  44  Ohio  St.  80,  4  N. 

E.  599,  58  Am.  Rep.  789 78,  79 

Adamson  v.  Jar  vis,  4  Bing.  66 175 

tAdler  v.  Fenton,  24  How.  407,  16  L. 

Ed.  696  20 

Adsit  v.  Brady,  4  Hill,  630,  40  Am.  Dec. 

305  539 

tAhern  v.  Steele,  115  N.  Y.  209,  210,  22 

N.   E.   194,   5  L.   R.   A.   449,  12  Am.   St. 

Rep.  778 457,  463 

tAinsworth  v.  Lakln,  180  Mass.  397,  62 

N.   E.   746,  57  L.  R.  A.  132,  91  Am.   St. 

Rep.  314  565 

tAlabama  G.  S.  R.  Co.  v.  Carroll,  97 

Ala.  126,  11  South.  803,  18  L.  R.  A.  433, 

38  Am.  St.  Rep.  163 678 

tAlabama  G.  S.  R.  Co.  v.  Crocker,  131 

Ala.  584,  31  South.  561 577 

tAlbany  City  Sav.  Inst.  v.  Burdick,  87 

N.  Y.  40,  49 661 

tAlderson  v.  Maddlson,  5  Exch.  Dlv.  296  20 

Aldred's  Case,  9  Coke,  58 450 

Aldricti  v.  Printing  Co.,  9  Minn.  133 

(Gil.  123)  372 

tAldridge  v.  Stuyvesant,  1  Hall  (N.  Y.) 

210  71 

Alexander  v.  Alexander,  9  Wend.  141..  302 

tAlexander  v.  Hard,  64  N.  Y.  228 400 

tAlexander  v.  Pennsylvania  Co.,  48  Ohio 

St.   623,   30   N.    E.    69 678 


Page 

tAlexander  r.    Swackhamer,   105  Ind.   81, 

*4  N.   E.  433,  5  N.    E.   908,  55  Am.  Rep. 

180  508 

t  Allen  T.  Crofoot,  5  Wend.  507 402 

Allen  v.  Flood  (1898)  A.  C.  1,  108 298,  299 

tAllen  v.  Flood  (1898)  A.  C.  1,  106,  107 

119-121,  126,  127,  153,  171-179 71,  116 

tAllen  v.  Hillman,  12  Pick.  101 316 

Allen  v.  State,  34  Tex.  230 ' 481 

Allen  v.  Wright,  8  Carr.  &  Payne,  522....  251 
Allin  v.  Lumber  Co.,  150  Mass.  560,  23 

N.  E.  581,  6  L.  R.  A.  436 679 

tAllison  v.  Hobbs,  96  Me.  26,  51  Atl.  245  170 
tAllred  v.  Bray,  41  Mo.  484,  97  Am.  Dec. 

283  181 

tAHsop  v.  Allsop,  5  Hurl.  &  N.  534.. 62,  327 
tAlsop  v.  Lidden,  130  Ala.  548,  30  South. 

401  289 

tAmerican  Exp.  Co.  v.  Patterson,  73  Ind. 

430  226 

tAmerican  Union  Tel.  Co.  v.  Middleton, 

80  N.  Y.  408 389,  507,  680 

tAmes  v.  Railway,  117  Mass.  541,  19  Am. 

Rep.  426  138 

tAmsterdam  Knitting  Co.  v.  Dean,  162 

N,  Y.  278,  56  N.  E.  757 43 

fAmy  v.  Sup'rs,  U  Wall.  136,  20  L.  Ed.  101  542 
Ancona  v.  Marks,  7  Hurl.  &  N.  686,  695  184 
tAnderson  v.  Arnold's  Ex'r,  79  Ky.  370  121 
tAnderson  v.  Cowles,  72  Conn.  335,  44 

Atl.  477,  77  Am.  St.  Rep.  310 402 

tAnderson  v.  Gorrie  (1895)  1  Q.  B.  668  585 
tAnderson  T.  How,  116  N.  Y.  336,  22  N. 

E.  695 263,  269 

Anderson  v.  State,  6  Baxt.  608 202 

Andre  v.  Johnson,  6  Blackf.  375 203 

tAndres  v.  Koppenheafer,  3  Serg.  &  R. 

255,  8  Am.  Dec.  647 304 

tAndrew  v.  Deshler,  45  N.  J.  Law,  167..  385 
Andrews  v.  Jackson,  168  Mass.  266,  47 

N.   E.  412,  37  L.  R.  A.  402,  60  Am.   St 

Rep.  390  655 

tAndrews  v.  Jackson,  168  Mass.  266,  268, 

47  N.    E.   412,   37  L.   R.   A.   402,  60  Am. 

St.  Rep.  390 655,  661! 

Andrews  v.  Ludlow,  5  Pick.  32 18 

Andrews  v.  Vanduzer,  11  Johns.  R.  38..  353 
tAngle  v.  Railroad  Co.,  151  U.  S.  1,  14 

Sup.  Ct.  240,  38  L.  Ed.  55 116 

Angus  v.  Clifford,  2  L.  R.  Ch.  449 671 

tAngus  T.  Clifford  (1891)  2  Ch.  449 644 

Angus  v.  Radin,  5  N.  J.  Law,  815,  8  Am. 

Dec.    626    396 


CHASE  (2o  ED.) — b 


(xvii) 


XV111 


CASES   CITED. 


Page 
tAnonymous,  80  N.  Y.  26J,  19  Am.   Rep. 

174    304 

tAnsteth  v.   Railroad  Co.,  145  N.   Y.  210, 

39  N.   E.  708,  45  Am.   St.  Rep.  607 557 

Antelope,  The,  10  Wheat.  66,  6  L.  Ed.  268  681 

tAnthony  v.   Haney,   8   Bing.   186 394 

Anthony  v.  Slaid,  11  Mete.  (Mass.)....  290 
Apgar  v.  Woolston,  43  N.  J.  Law,  67...  279 
tApgar  v.  Woolston,  43  N.  J.  Law,  57..  277 
Arkwright  v.  Newbold,  17  Ch.  Div.  301  635 
Armory  v.  Delamirie,  1  Strange,  504...  610 
Armstrong  v.  Railroad  Co.,  L.  R.  10 

Exch.    47,    52 592 

tArmstrong    Co.    v.    Clarion    Co.,    66   Pa, 

218,  5  Am.   Rep.  368 176 

tArnold  v.  Teel,  182  Mass.  1,  64  N.  E.  413  666 
Arrowsmith  v.  Le  Mesurier,  2  N.  R.  211  221 

tArthur  v.  Grlswold,  55  N.  Y.  400 669 

Arundell  v.  White,  14  East,  216 276 

Ash  v.   Railroad  Co.,  72  Md.  144,  19  Atl. 

643,    20   Am.    St.    Rep.    461 682 

tAsh    v.    Railroad    Co.,    72    Md.    144,    19 

Atl.   643,  20  Am.   St   Rep.  461 678 

Ashby    v.    White,    1    Salk.    21,    2    Lord 

Raym.    938,    953,    6   Mod.    45,    Holt,    524; 

1  Smith  Lead.   Cas.    (8th  Ed.)   264 

17,  34,  38,  115 
Ashford  v.    Choate,   20  U.   C.    C.   P.   471, 

3   Suth.    Dam.    674 387 

Ashley   v.    Dixon,    48   N.    Y.    430,    8   Am. 

Rep.    559    62F 

Asser  v.    Finch,   2  Lev.   234 892 

Association  v.  Fairhurst,  9  Exch.  422,  429  168 
tAtchison,  etc.,  R.  Co.  v.  Parry  (Kan.) 

73   Pac.   105 80 

tAtchison,    etc.,    R.    Co.    v.    Reesman,    9 

C.  C.  A.  20,  60  Fed.  370,  23  L.  R.  A.  768    32 
tAtkins  v.  Johnson,  43  Vt.  78,  5  Am.  Rep. 

260    178 

^Atkinson  v.  Transportation  Co.,  60  Wis. 

141,  18  N.  W.  764,  50  Am.  Rep.  352... 78,  79 
tAtkinson   v.    Waterworks   Co.,    L.    R.    2 

Ex.    D.    441 32 

tAtlantlc   &   P.    R.    Co.   v.   Laird,   164  U. 

S.   393,   395,   399,   17   Sup.   Ct.   120,   41  L. 

Ed.  485   138,   170 

Attorney    General    T.    Cleaver,    18    Ves. 

211,    219    419,    421 

Attorney    General    T.    Telegraph    Co.,    30 

Beav.   287  422 

Atwater  v.  Tupper,  45  Conn.  144,  29  Am. 

Rep.   674  624 

tAtwood  v.  Partree,  56  Conn.  80,  14  AtL 

85 69 

tAuchmuty  T.   Ham,  1  Denio,  495 171 

tAustin  v.   Barrows,   41  Conn.   287 20 

Austin    v.    Culpeper,    Skin.    124 329 

Austin  v.  Railroad  Co.,  L.  R.  2  Q.  B.  442  137 
tAustin  v.  Vrooman,  128  N.  Y.  229,  28 

N.  E.  477,  14  L.  R.  A.  138. 234,  535 

Austin's  Case,   5   Rawle,    204 533 

tAvery  T.  Halsey,  14  Pick.  174 178 

Avery  T.  Maxwell,  4  N.  H.  36,  37.... 414,  415 
tAvery  v.  Railroad  Co.,  121  N.  Y.  31,  24 

N.    B.    20 209 

tAvery  v.    Ray,   1  Mass.   12 205 

tAyer  T.  Ashmead,  31  Conn.  447,  83  Am. 

Dec.  154  180 

Babbage   v.    Powers,    130   N.   Y.   281,    29 
N.  E.  132.  14  L.  R.   A.  398 177 


Page 
tBabbitt  T.   Bank,    169   Mass.    861,   47  N. 

E.   1018   109 

tBabcock  v.  Utter,  1  Abb.  Dec.  27 407 

Bacon  v.   Railroad  Co.,  55  Mich.   224,  21 

N.    W.    324,    54   Am.    Rep.    372 344 

Bacon  v.   Towne,   4  Gush.  217,  218. ...271,   276 

tBacon  v.   Towne,  4  Cush.   217 269 

Bacon   T.    Waters,   2  Allen,   400 276 

Badger  v.   Phinney,  15  Mass.  359,  8  Am. 

Dec.    105    169 

Badkin  v.   Powell,   Cowp.   476,   479 183 

Bagshaw  v.  Seymour,  4  C.  B.  (N.  S.)  873  671 
Bailey  v.   Waterworks,   6  H.    &   N.    241..    67 

Bally  v.   Merrell,   3  Bulst.   95 73,    629 

Baird  v.  Williamson,  15  C.  B.  (N.  S.)  376    54 
Baker  T.   Beers,   64  N.    H.   Iu2,   6  Atl.   35  521 

Baker   T.    Bolton,   1   Camp.    493 624 

tBaker  v.   Lothrop,   155  Mass.   376,  29  N. 

E.  643  516 

tBaker   v.    Railroad,    118    N.    C.    1015,    24 

S.    E.   415 571 

Baldwin   v.   Cole,    6   Mod.    212 517 

Baldwin  v.  Hayden,  6  Conn.   453 197,   202 

Baldwin  v.  Weed,  17  Wend.   224 271 

Balkum  v.   State,   40  AJa.   671 1S6 

tBall  T.   Nye,  99  Mass.  582,  97  Am.   Dec. 

56    41.-, 

Ball  T.  Ray,   L.   R.  8  Ch.  App.  467 424 

tBallard  v.   State,   43  Ohio  St.   340,  1  N. 

E.   76   258 

Ballard   T.   Tomlinson,   26  Ch.    Div.   194..    59 
Baltimore  City  Pass.  R.  Co.  v.  Kemp,  61 

Md.    74    132 

fBaltimore    City    R.    Co.    v.    McDonnell, 

43    Md.    534 577 

tBaltimore  Traction  Co.  v.  Appel,  80  Md. 

603,    31   Atl.    964 571 

tBaltimore  &  O.   R.   Co.  v.  Cain,  81  Md. 

87,  31  Atl.  801,   28  L.   R.  A.   688 260 

tBaltimore  &  O.  R.  Co.  v.  Pumphrey,  59 

Md.    390 138 

Baltimore  &  P.  R.  Co.  v.  Church,  108  U. 

S.  317,  2  Sup.  Ct.  719,  27  L.  Ed.  739....  470 
tBaltimore  &  P.    R.    Co.   v.   Church,   108 

U.   S.  317,  2  Sup.  Ct.  719,  27  L.  Ed.  739  474 
tBaltimore   &   P.    R.    Co.   v.    Reaney,    42 

Md.    117 50 

Bamford  v.  Turnley,  3  Best  &  S.  66;  31 

Law  J.  Q.  B.  286 420,  467 

Bancroft  v.  Cambridge,  126  Mass.  438-441 

468-470 
Bank  v.  Addle,  L.  R.  1  H.  L.  Sc.  145,  162 

633,  637 
Bank  T.   Moore,  78  Pa.   407,   412,  21  Am. 

Rep.    24    127 

Bank  v.   Wheeler,   48   N.   Y.   492,   8  Am. 

Rep.    564    507 

tBank  v.   Wheeler,  48  N.  Y.  492,  8  Am. 

Rep.    564 508 

Bankart   v.    Houghton,    27    Beav.    425 424 

tBank    of    Miller    v.    Richmon,    64    Neb. 

Ill,  89  N.  W.  627 270,  277 

Barber   v.    Rollinson,    1   Cr.    &   M.   330; 

3  Tyrwh.   266 235 

tBarclay   v.    Abraham    (Iowa)   96   N.    W. 

1080    60 

Barclay   T.    Commonwealth,    26    Pa.    503, 

64   Am.    Dec.    715 481 

tBardeh    v.    Crocker.    10   Pick.    383,    389..    36 
Bareham  T.  Hall,  22  Law  T.  (N.  S.)  116 

420,  421 


CASES  CITED. 


XIX 


Page 

Barbam's  Case,  4  Rep.  20 3S1 

Barker  v.  Bates,  13  Pick.  255,  23  Am. 

Dec.  678  407,  408 

Barker  v.  Braham,  2  W.  Bl.  866,  868,  3 

Wils.  368,  376 183,  236,  238 

Barker  v.  Stetson,  7  Gray,  53,  66  Am. 

Dec.  457  237 

fBarker  v.  Stetson,  7  Gray,  53,  66  Am. 

Dec.  457  241 

Barkley  v.  Wilcox,  19  Hun,  320 430 

Barnardiston  v.  Soame,  6  State  Tr.  1063, 

1  East,  568 638 

Barnes  v.  Hathorn,  54  Me.  125 481 

Barnes  v.  McCrate,  32  Me.  442 26 

tBarnes  v.  McCrate,  32  Me.  442 878 

Barnes  v.  Martin,  15  Wis.  240,  82  Am. 

Dec.  670  203 

Barnes  v.  Ward,  9  C.  B.  392,  420 14 

tBarnett  v.  Allen,  3  H.  &  N.  376 327 

Barnett  v.  Reed,  51  Pa.  190,  88  Am.  Dec. 

574  288 

tBarney  v.  Railroad  Co.,  126  Mo.  372,  28 

S.  W.  1069,  26  L.  R.  A.  847 577 

fBarr  v.  Boyles,  96  Pa.  31 547 

tBarr  v.  Essex  Trades  Council,  53  N.  J. 

Eq.  101,  117,  30  Atl.  881 71,  117,  300 

tBarr  v.  Moore,  87  Pa.  385,  30  Am.  Rep.  ' 

367  331,  340 

tBarr  v.  Post,  56  Neb.  698,  77  N.  W.  123  20* 
tBarrett  v.  Palmer,  135  N.  Y.  336,  31  N. 

E.    1017,    17   L.    R.    A.    720,    31   Am.    St. 

Rep.  835  680 

tBarrett  v.  Railroad  Co.,  91  Cal.  296,  27 

Pac.    666,    25   Am.    St.    Rep.   186;     45   N. 

Y.  628  ISO,  577 

Barren  v.  Alexander,  27  Mo.  530 647 

Barry  v.  Railroad  Co.,  92  N.  Y.  289,  44 

Am.  Rep.  377 556 

Bartholomew  v.  Harwinton,  33  Conn.  408  474 
Bartlett  v.  Gas-Light  Co.,  117  Mass.  533, 

19  Am.  Rep.  421 127 

tBartlett  V.  Hoyt,  29  N.  H.  317 512 

Bartlett  v.  Perkins,  13  Me.  87 398 

Bartley  v.  Richtmyer,  4  N.  Y.  38,  53  Am. 

Dec.  338  552 

Barton  v.  Syracuse,  37  Barb.  292;  36  N. 

Y.  54  540,  541 

Barton  v.  Williams,  5  Barn.  &  Aid.  395  514 

Barwell  V.  Brooks,  1  Law  T.  454 423 

tBascom  v.  Dempsey,  143  Mass.  409,  9  N. 

E.  744  400 

Basely  T.  Clarkson,  3  Lev.  37 491 

Bassell  v.  Elmore,  48  N  Y.  563 387 

tBassell  v.  Elmore,  48  N.  Y.  561 327 

tBassett  v.  Carleton,  32  Me.  553,  54  Am. 

Dec.  605  36 

tBatchelder  v.  Currier,  45  N.  H.  460....  241 
tBateman  v.  Lyall,  7  C.  B.  (N.  S.)  638..  62 
tBath  v.  Metcalf,  145  Mass.  274,  14  N.  B. 

133,,  1  Am.  St.  Rep.  455 255 

Battersey's  Case,  Winche,  48 175 

Battishill  v.  Reed,  18  C.  B.  (N.  S.)  696..  424 

Baum  v.  Clause,  5  Hill,  196 851 

tBaxter  v.  Doe,  148  Mass.  558,  8  N.  E.  415  32 

Bayly  v.  Merrel,  Cro.  Jac.  386 659 

Baynes  v.  Brewster,  2  Q.  B.  384 257 

tBays  v.  Hunt,  60  Iowa,  251,  14  N.  W. 

7«5  373 

tBeach  v.  Hancock,  27  N.  H.  223,  59  Am. 

Dec.  373  187 

Beach  v.  Ranney,  2  Hill,  309,  314.  .324,  325,  384 


Beal  T.  Pinch,  11  N.  T.  128-134 170,  172 

Bealey  v.  Shaw,  6  East,  208 40,  41 

tBearce  v.  Bass,  88  Me.  540,  34  Atl.  411, 

51  Am.  St.  Rep.  446 373 

Beard  v.  Murphy,  37  Vt.  99,  102,  86  Am. 

Dec.  693  48 

tBeard  T.  Murphy,  37  Vt.  99,  86  Am.  Dec. 

693  482 

Beardmore  T.  Tredwell,  31  Law  J.  Ch. 

892  420 

Beardsley  v.  Tappan,  5  Blatchf.  498,  Fed. 

Cas.  No.  1,189 368 

tBeatrice  Gas  Co.  v.  Thomas,  41  Neb. 

662,  59  N.  W.  925,  43  Am.  St.  Rep.  711  445 
Beauchamp  v.  Mining  Co.,  50  Mich.  163, 

15  N.  W.  65,  45  Am.  Rep.  30 134 

tBeaudette  v.  Gagne,  87  Me.  534,  33  Atl. 

23  653 

tBebinger  v.  Sweet,  1  Abb.  N.  C.  263 292 

tBechel  v.  Express  Co.  (Neb.)  91  N.  W. 

853  269 

Beck  v.  Carter,  68  N.  Y.  283,  23  Am.  Rep. 

176  556 

Beckwith  v.  Philby,  6  Barn.  &  Cres.  635  250 
Beckwith  v.  Shordike,  4  Burrows,  2092..  396 
S^-X-rc1  v.  Bags&aw,  4  Hurl.  &  N.  537..  671 

Bedingfteld  v.  Onslow,  3  Lev.  209 398 

tBee  Pub.  Co.  v.  Shields  (Neb.)  94  N.  W. 

1029  372 

Beeper  v.  Jackson,  64  Md.  593,  2  Atl.  916  355 
Behling  v.  Pipe  Lines,  160  Pa.  359,  28 

Atl.  777,  40  Am.  St,  Rep.  724 98,  99 

Behrens  v.  McKenzie,  23  Iowa,  333,  343, 

92  Am.  Dec.  428 125,  127 

tBeiser  v.  Publishing  Co.  (Ky.)  68  S.  W. 

457  373 

Belcher  v.  Costello,  122  Mass.  189 655 

iBelcher  v.  Costello,  122  Mass.  189 656 

Bell  v.  Hansley,  48  N.  C.  131 194 

Bell  T.  Josselyn,  3  Gray,  309,  63  Am.  Dec. 

741  49 

tBell  v.  McGuinness,  40  Ohio  St.  204,  48 

Am.  Rep.  673 354 

Bell  v.  Morrison,  27  Miss.  68 172 

tBell  T.  Railroad  Co.,  202  Pa.  178,  51  Atl. 

600 274 

Bell  v.  Stone,  1  Bos.  &  P.  331 329 

tBellant  v.  Brown,  78  Mich.  294,  44  N. 

W.  326  36 

tBellefontaine  R.  Co.  v.  Snyder,  24  Ohio 

St.  670  589 

tBellefontaine  &  I.  R.  Co.  v.  Snyder,  18  v 

Ohio  St.  408,  98  Am.  Dec.  175 588 

Bemla  v.  Upham,  13  Pick.  169 442 

tBence  v.  Railroad  Co.,  181  Mass.  221,  63 

N.  E.  417 678 

Benner  v.  Dredging  Co.,  134  N.  Y.  156, 

31  N.  E.  328,  17  L,  R.  A.  220,  30  Am.  St. 

Rep.  649  66 

i Benner  v.  Dredging  Co.,  134  N.  Y.  156, 

31  N.    E.   328,   17  L,   R.   A.   220,  30  Am. 

St  Rep.  649 ll» 

Bonnet  v.  Railroad  Co.,  36  N.  J.  Law, 

225,  13  Am.  Rep.  435 593 

Bennett  v.  Bennett,  116  N.  Y.  584,  23  N. 

E.  17,  6  L.  R.  A.  553 23 

Bennett  v.  Railroad  Co.,  102  U.  S.  577, 

26  L.  Ed.  235 560 

IBennett  v.  Railroad  Co.,  102  U.  S.  577, 

26  L.  Ed.  235 557 

t Bennett  v.  Williamson,  4  Sandf.  60 837 


CASES   CITED. 


Page 
tBenolt  T.   Railroad   Co.,   154   N.   T.   223, 

48  N.  E.  524 598 

fBenton   v.   State,   59   N.   J.   Law,   551,   36 

Atl.  1041  340,   372,  883 

Bentz  v.  Armstrong,  8  Watts  &  S.  40,  42 

Am.  Dec.  265 432 

fBenzing  v.  Steinway,  101  N.  Y.  547,  5  N. 

E.    449    614 

fBerger  v.  Gaslight  Co.,  60  Minn.  296,  62 

N.  W.  336 565 

Bergmann  v.  Jones,  94  N.  Y.  51 387 

Berly  v.  Taylor,  5  Hill,  577,  584 140 

Berry   v.    Fletcher,    1    Dill.    67,    71,    Fed. 

Gas.  No.  1,357 172 

tBerry  v.  Sugar  Notch  Borough,  191  Pa. 

345,    43  Atl.   240 82 

tBeseman  v.  Railroad  Co.,  50  N.  J.  Law, 

235,  245,  13  Atl.  164;    52  N.  J.  Law,  221, 

20   Atl.   169 474 

Besson  v.  Southard,  10  N.  Y.  236 261,  262 

tBesson  v.   Southard,   10  N.   Y.   236 266 

Beswick  v.  Cunden,  Cro.  Eliz.  520 461 

Betts  v.  Gibbins,  2  Adol.  &  E.  57 175 

tBickford  v.   Richards,  154  Mass.  163,  27 

N.  E.  1014,  26  Am.  St.  Rep.  224 163 

Bicknell  v.  Dorion,  16  Pick.  478,  487.  .276,  288 
Biering  v.  Bank,  69  Tex.  599,  7  S.  W.  90  286 
tBigby  v.  U.  S.,  188  U.  S.  400,  409,  23 

Sup.  Ct.  468,  47  L.  Ed.  519 141 

Bigelow  v.  Stearns,  19  Johns.  39,  10  Am. 

Dec.   189 538 

fBillingsley  v.   White,   59   Pa.   469 495 

Billiter  v.  Young,  6  El.  &  Bl.  41 517 

fBinford  v.  Johnston,  82  Ind.  426,  42  Am. 

Rep.  508  109 

Bird  v.   Brown,  4  Exch.  786,  799 183 

Bird  v.  Holbrook,  4  Bing.  628 

104,   486,  487,  556 

Bird  v.   Randall,  3  Burrows,  1345 Ill,  385 

tBisbey  v.  Shaw,  12  N.  Y.  67 354 

tBish  T.  Van  Cannon,  94  Ind.  263 674 

Bishop  v.  Montague,  Cro.  Eliz.  824 183 

tBisbop  T.   Railroad  Co.,  48  Minn.  26,  60 

N.  W.  927 137 

tBishop  v.   Ranney.  59  Vt.  316,  7  Atl.  820 

137,  189 
tBishop  v.  Weber,  139  Mass.  411,  1  N.  E. 

154,  52  Am.   Rep.  715 162 

Bishop  v.  Williamson,  11  Me.  495 543 

Bissell  v.  Gold,  1  Wend.  210,  19  Am.  Dec. 

480   221 

Bitz  v.  Meyer,  40  N.  J.  Law,  252,  29  Am. 

Rep.   233   283,  286 

tBixby  v.  Dunlap,  56  N.  H.  456,  22  Am. 

Rep.  475  117 

tBlack  v.  Buckingham,  174  Mass.   102,  54 

N.  E.  494 274 

Blackman  v.   Simmons,   3  Car.   &  P.   138 

485,  486 

Blad  v.  Bamfleld,  3  Swanst.  604 677 

Blades   v.    Higgs,    10   C.    B.    (N.    S.)    713; 

12  C.  B.   (N.  S.)  501;    13  C.  B.   (N.   S.) 

844;    11  H.   L.   Cas.   621 202 

tBlades  v.  Higgs,  11  H.  L.  C.  621 394 

Blad's  Case,  3  Swanst.  603 677 

tBlaisdell   v.    Railroad  Co.,  51  N.   H.   485  407 

Blake  v.  Barnard,  9  Car.  &  P.  626 187 

Blake  v.  Ferris,  5  N.  Y.  48,  55  Am.  Dec. 

304    607,  608 

Blake  T.  Jerome,  14  Johns.  406 393 


Page 
tBlakeslee  T.  Carroll,  64  Conn.  223,  2? 

Atl.  473,  25  L.  R.  A.  106 37» 

Blanchard  v.  Baker,  8  Greenl.  253,  268, 

270,  23  Am.  Dec.  504 39,  41,  42 

tBlanchenay  v.  Burt,  4  Ad.  &  El.  (N. 

S.)  707  246 

Blaymire  v.  Haley,  6  Mees.  &  W.  55....  552 

tBlodgett  v.  Race,  18  Hun,  132 229 

tBlodgett  v.  Stone,  60  N.  H.  167 43 

Blood  v.  Railroad  Corp.,  2  Gray,  140,  61 

Am.  Dec.  444 465 

tBloodgood  v.  Ayers,  108  N.  Y.  400,  405, 

15  N.  E.  433,  2  Am.  St.  Rep.  443 59 

Bloodworth  v.  Gray,  8  Scott,  N.  R.  11..  313 
tBloomfleld  &  R.  Gaslight  Co.  v.  Cal- 
kins, 62  N.  Y.  386 390 

fBluedorn  v.  Railroad  Co.  (Mo.)  24  S.  W. 

57,  60  67 

Blyth  v.  Topham,  Cro.  Jac.  158 12 

tBlythe  v.  Railroad  Co.,  15  Colo.  333,  25 

Pac.   702,   11  L.   R.   A.   615,   22   Am.    St. 

Rep.  403  84 

fBoard  of  Trade  Telegraph  Co.  v.  Bar- 

nett,  107  111.  507,  47  Am.  Rep.  453 389 

Bobb  v.  Bosworth,  Litt.  Sel.  Cas.  81 203 

tBock  v.  Grooms  (Neb.)  92  N.  W.  603....  83 

tBocock  v.  Cochran,  32  Hun,  521 234 

tBoddy  v.  Henry,  113  Iowa,  462,  85  N.  W. 

771,  53  L.  R.  A.  769 642,  644 

tBohan  v.  Gaslight  Co.,  122  N.  Y.  18,  25 

N.  E.  246,  9  L.  R.  A.  711 425 

tBolin  v.  Railroad  Co.,  108  Wis.  333,  84 

N.  W.  446,  81  Am.  St.  Rep.  911 569 

Bolingbroke  v.  Local  Board,  L.  R.  9  C. 

P.  575  604 

Bolivar  Mfg.  Co.  v.  Mfg.  Co.,  16  Pick. 

241  40 

Bonino  v.  Caledonio,  144  Mass.  299,  11  N. 

E.  98  206 

tBonney  v.  King,  201  111.  47,  66  N.  E. 

377  , 284 

Bonoml  v.  Backhouse,  E.  B.  &  E.  622, 

654,  655;  9  H.  L.  Cas.  503,  513 47,  48 

tBonomi  v.  Backhouse,  9  H.  L.  Cas.  503..  66 
tBoomer  v.  Wilbur,  176  Mass.  482,  57  N. 

E.  1004,  53  L.  R.  A.  172 609 

tBooth  v.  Kurrus,  55  N.  J.  Law,  370,  26 

Atl.  1013  234,  246 

Booth  T.  Railroad  Co.,  63  Hun,  624,  17  N. 

Y.  Supp.  336;    73  N.  Y.  40,  29  Am.  Rep. 

97  52,  611,  613 

tBooth  V.  Railroad  Co.,  140  N.  Y.  267, 

275,    35   N.    E.    592,    24   L.    R.    A.    105,    37 

Am.  St.  Rep.  552 50,  119 

tBorchardt  v.  Boom  Co.,  54  Wis.  107,  11 

N.  W.  440,  41  Am.  Rep.  12 84 

jBornmann  v.  Star  Co.,  174  N.  Y.  212, 

219,  66  N.  E.  723 335 

tBorough  of  Bathurst  v.  Macpherson,  L. 

R.  4  App.  Cas.  256,  268 32 

tBosi  v.  Herald  Co.,  33  Misc.  Rep.  622, 

68   N.   Y.    Supp.   898;     58  App.   Div.   619, 

68  N.  Y.  Supp.  1134 388 

tBossingham  v.  Syck,  118  Iowa,  192,  91 

N.  W.  1047 655 

tBoston  &  A.  R.  Co.  v.  Shanly,  107  Mass. 

568  170 

tBoston  &  M.  R.  Co.  v.  Small,  85  Me. 

462,  27  Atl.  349,  35  Am.  St.  Rep.  379...  402 
Bostwick  v.  Lewis,  2  Day,  447 2'. 


CASES  CITED. 


xxi 


Page 
fBott  T.    Pratt,   88   Minn.   823,   23  N.   W. 

237,  53  Am.   Rep.  47 32 

fBottoms   v.    Railroad,    114   N.    C.    699,    19 

S.    E.    730 588 

tBoulden  v.  Railroad  Co.,  205  Pa.  264,  54 

Atl.  906  684 

fBoulier  v.   Macauley,   91  Ky.   135,   15  S. 

W.  60,  11  L.  R.  A.  550,  34  Am.  St.  Rep. 

171    117 

Boulter  v.  Clark,   Bull.   N.   P.   16 194 

tBourn  v.  Davis,  76  Me.  223 662 

tBoush  v.  Fidelity  &  Deposit  Co.,  100  Va, 

735,   -52  S.    E.   877 270 

Bowden  v.  Lewis,  13  R.  I.  189 478 

tBowen  v.  Fenner,  40  Barb.  383 512 

Bowen  v.   Hall,  6  Q.   B.   Div.  333 295 

Bower  v.  Hill,  1  Bing.  N.  C.  549 39 

tBowes   T.    Boston,    155   Mass.    344,   29   N. 

E.  633,  15  L.  R.  A.  365 626 

Bowlsby  v.   Speer,  31  N.  J.  Law,  351,  86 

Am.  Dec.  216 432 

Boyce  v.  Brockway,  31  N.  Y.  490 122,  499 

tBoyce  v.  Williams,  84  N.  C.  275,  37  Am. 

Rep.   618  611 

tBoyd  v.   Cross,  35  Md.  194 269,  270 

tBoyd  v.  State,  88  Ala.  169,  7  South.  268, 

16  Am.  St.   Rep.  31 212 

tBoydell  v.  Jones,  4  M.  &  W.   446 310 

tBoynton  v.   Stocking  Co.,  146  Mass.  219, 

15  N.  E.  507 387 

fBoyson    v.    Thorn,    98   Cal.   578,    33   Pac. 

492,  21  L.  R.  A.  233 117 

fBoxsius  T.  Goblet  Freres  (1894)  1  Q.  B. 

843    344 

Brabbits  v.  Railroad  Co.,  38  Wis.  289 616 

Brace  v.  Yale,  10  Allen,  441 439 

tBrackett  v.   Griswold,   112  N.  Y.   454,  20 

N.  E.  376 296,  641,  674 

tBradford  Glycerine  Co.   v.   Mfg.   Co.,   60 

Ohio  St.  560,  54  N.  E.  528,  45  L.  R.  A. 

658,  71  Am.  St.  Rep.  740 452 

Bradley,    Ex    parte,    7    Wall.    364,    19    L. 

Ed.  214  527 

fBradley  v.    Cramer,   59   Wis.   309,   18   N. 

W.  268,  48  Am.  Rep.  511 331 

Bradley   v.    Fisher,    13   Wall.    335,    20   L. 

Ed.   646   231 

fBradley  T.  Fuller,  118  Mass.  239 20 

Bradley  v.   Gill,  Lutw.   29 481 

Bradley   v.    Poole,   98   Mass.   169,    93   Am. 

Dec.  144   671 

tBradshaw  v.  Railroad  Co.,  135  Mass.  407, 

46  Am.   Rep.   481 209 

Bradt  v.  Towsley,  13  Wend.  253 326 

Brady  v.  Weeks,  3  Barb.  157 423,"  450,  481 

Brainard    v.    Railroad    Co.,    7   Gush.    506, 

511    465 

tBraithwaite  v.  Skinner,  5  M.  &  W.  327..    35 
tBramson's  Adm'r  v.  Labrot,  81  Ky.  638, 

50  Am.   Rep.   193 577 

tBrand  v.  Hinchman,  68  Mich.  590,  36  N. 

W.  664,  13  Am.  St.  Rep.  362 287 

Brand    v.    Railway,    L.    R.    1   Q.    B.    130; 

L.  R.  2  Q.  B.  223;    L.  R.  4  H.  L.  171..  470 
tBrashear  v.  Traction  Co.,  180  Pa.  392,  36 

Atl.  914  137 

tBrayton  v.  Fall  River,  113  Mass.  218,  18 

Am.  Rep.  470 69,  467 

Brent    v.    Kimball,    60    111.    211,    14    Am. 

Rep.  35  66 

Bretherton  T.  Wood,  3  Brod.  &  B.  54.... 

136,  137 


Page 

fBrettun  T.  Anthony,  103  Mass.   37 382 

fBrewer   v.    Chase,    121   Mich.    526,    80   N. 

W.  575,  46  L.  R.  A.  397,  80  Am.  St.  Rep. 

527    353,  354 

Brewer  v.  Weakley,  2  Overt.  99 372 

Brewster  v.  Silliman,  38  N.  Y.  423 123 

Brian  v.  Cockman,  Cro.  Car.  322 Ill 

tBrickell  v.   Railroad  Co.,  120  N.  Y.  290, 

24  N.  E.  449,  17  Am.  St.  Rep.  648 596 

Bricker  v.   Potts,   12  Pa.   200 382 

Bridge   v.    Railroad   Co.,    3   Mees.    &   W. 

244,  246 568,  570,  571 

Bridge   Co.   v.   U.   S.,   105   U.    S.   470,   480, 

26   L.    Ed.   1143 474 

Briggs  v.  Railroad  Co.,  28  Barb.  515 501 

Bright  v.  Barnett  Co.,  88  Wis.  299,  60  N. 

W.  418,  26  L,.  R.  A.  524 162 

Brightman  v.  Fairhaven,  7  Gray,  271....  465 

Brill  v.   Flagler,  23  Wend.  354 451 

Brinsmead   v.    Harrison,    L.    R.    6   C.    P. 

584;    Ex.  Ch.  L.  R.  7  C.  P.  547 179,  524 

Bristol  T.   Burt,  7  J.  R.  254 123 

fBristor  v.  Burr,  120  N.  Y.  427,  24  N.  E. 

937,  8  L.  R.   A.  710 200 

British    South   Africa  Co.    v.    Companhia 

De    Mocambique    [1893]    App.    Gas.    602, 

621 679,  680 

Brittaln  T.  Kinnaird,  1  Brod.  &  B.  432.. 

231,  538 
Broadbent  v.   Gas  Co.,  7  De  Gex,   M.   & 

G.    436    422 

Brock  v.  Copeland,  1  Esp.  203 486 

tBrock  v.  Stimson,  108  Mass.  520,  11  Am. 

Rep.  390  402 

tBrokaw    v.    Railroad    &    Transportation 

Co.,  32  N.  J.  Law,  328,  90  Am.  Dec.  659  209 

Bromley  v.  Coxwell,   2  B.  &  P.  438 519 

Brook  v.  Rawl,  4  Welsb.  H.  &  G.  521....  386 
Brooker   v.    Coffin,   6   Johns.    188,   4  Am. 

Dec.   337  302 

tBrooks  v.  Hodgkinson,  4  H.   &  N.  712..  239 
tBrostrom   v.    Lauppe,   179   Mass.   315,   60 

N.  E.  785 6 

Brow  v.  Hathaway,  13  Allen,  239 356 

tBrown   v.    Boom  Co.,   109   Pa.   57,  1  Atl. 

156,  58  Am.  Rep.  708 130 

tBrown  v.  Cambridge,  3  Allen,  474 180 

Brown  v.   Cape  Girardeau,  90  Mo.  377,  2 

S.  W.  302,  59  Am.  Rep.  28 286 

Brown   v.   Carpenter,   26  Vt.   638,   62  Am. 

Dec.   603   484 

Brown  T.  Chapman,  6  C.  B.  365 235 

tBrown  v.   Collins,  53  N.  H.  442,  16  Am. 

Rep.  372 119,  130,  565 

tBrown  v.  Cook,  9  Johns.  361 516 

Brown  T.    De   Groff,   50  N.   J.   Law,   409, 

14  Atl.  219,   7  Am.   St.   Rep.   794 479 

Brown  v.  Dinsmoor,  3  N.  H.  103 398 

Brown  T.  Dunham,  1  Root,   272 168 

tBrown  v.   Hawkes  (1891)  2  Q.   B.  718 266 

Brown  v.   Howe,  9   Gray,  84,   85,   69  Am. 

Dec.  276  127 

tBrown    v.    Illlus,    27   Conn.    84,    71   Am. 

Dec.   49   69 

tBrown  v.  Lowell,  8  Mete.  177 36 

Brown  v.  Perkins,  12  Gray,  89 478,  482 

tBrown  v.  Perkins,  1  Allen,  89 181,  389 

Brown  v.  Railroad  Co.,  58  Me.  384 675 

Brown   v.    Randall,    36   Conn.    66,    4   Am. 

Rep.  36  279 


CASES   CITED. 


Page 
tBrown  T.  Ran<Sall,  36  Conn.  56,  4  Am. 

Rep.  35  277 

Brown  T.  Robins,  4  H.  &  N.  186 48 

TBrown  v.  Robins,  4  H.  &  N.  186 60 

tBrown  v.  Watson,  47  Me.  161,  74  Am. 

Dec.  482  467 

tBrown  T.  Webster  City,  115  Iowa,  511,  88 

N.  W.  1070 184 

Brown  v.  Wootten,  Yelv.  67 179 

tBrown  Ing  v.  Cover,  108  Pa.  595 515 

Brownlie  v.  Campbell,  L.  R.  5  App.  Gas. 

925  636,  637 

Bruce  v.  Railroad  Co.,  83  Ky.  174 683 

tBruch  v.  Carter,  32  N.  J.  Law,  554 493 

Bruff  v.  Mali,  36  N.  Y.  200 667 

Bryant  v.  Glutton,  1  M.  &  W.v  408 236 

Brydon  v.  Stewart,  2  Macq.  34 611 

tBucb  v.  Mfg.  Co.,  69  N.  H.  257,  44  Atl. 

809,  76  Am.  St.  Rep.  163 577 

tBucholz  T.  Railroad  Co.,  148  N.  Y.  640, 

43  N.  B.  76 ". 467 

tBuck  v.  Colbath,  3  Wall.  334,  18  L..  Ed. 

257  545 

tBucklin  T.  Beals,  38  Vt.  653 517 

Buel  v.  Railroad  Co.,  31  N.  Y.  314,  88  Am. 

Dec.  271  598 

Bulkeley  v.  Smith,  2  Duer,  261 262 

Bullard  v.  Harrison,  4  Maule  &  S.  387, 

393   409 

tBullard  v.  Saratoga  Co.,  77  N.  Y.  525..  410 
tBullitt  v.   Farrar,  42  Minn.  8,  43  N.  W. 

566,  6  L.  R.  A.  149,  18  Am.  St.  Rep.  485  644 
Bullock   v.    Babcock,    3   Wend.    391,    393, 

394  127,  131,  164 

Bump  T.  Betts,  19  Wend.   421 288 

Bunker  v.  Bunker,  Belknap,  July  Term, 

1847  458 

tBunting  v.  Hogsett,  139  Pa.  363,  21  Atl. 

31,   33,   34,  12  L.   R.  A.   268,  23  Am.   St. 

Rep.  192  696 

tBurdick  v.  Freeman,  120  N.  Y.  420,  24 

N.  E.  949 678 

tBurford  v.  Wible,  32  Pa.  95 352 

tBurgess  v.  Graflam  (C.  C.)  18  Fed.  251  493 
fBurgess  of  New  Windsor  v.  Stocksdale, 

95  Md.  196,  52  Atl.  596 400 

tBurke  v.  Ireland,  166  N.  Y.  305,  59  N. 

E.  914  609 

tBurkett  V.  Griffith,  90  Cal.  532,  27  Pac. 

527,   13  L.   R.   A.   707,   25  Am.    St.    Rep. 

151  385 

Burlingame  v.  Bell,  16  Mass.  320 18 

Burnard  v.  Haggis,  14  C.  B.  (N.  S.)  45.,  166 
tBurnham  v.  Loan  Co.,  179  Mass.  268,  60 

N.  E.  617 263 

tBurns  T.  Erben,  40  N.  Y.  463 255 

Burns  T.  Hill,  19  Ga.  22 168 

tBurns  v.  Lane,  138  Mass.  350 666 

Burns  v.  Railroad  Co.,  113  Ind.  169,  15 

N.  W.  230 683 

tBurns  v.  Railroad  Co.,  113  Ind.  169,  15 

N.  E.  230 684 

Buron  v.  Denman,  2  Exch.  167,  178,  188..  183 
tBurrell  v.  Fleming,  47  C.  C.  A.  598,  109 

Fed.  489  684 

tBurrill  v.  Stevens,  73  Me.  395,  40  Am. 

Rep.  366  656 

tBurroughs  v.  Eastman,  101  Mich.  419, 

59  N.  W.  817,  24  L.   R.   A.  859,  45  Am. 

St.    Rep.    419 258 


Page 
tBurroughs  T.  Guano  Co.,  81  Ala.  255,  1 

South.  212  648,  661 

Burrows  v.  Coke  Co.,  L.  R.  7  Exch.  96. .  105 

tBurt  v.  Bowles,  69  Ind.  1 656 

tBurt  v.  Newspaper  Co.,  154  Mass.  238, 

28  N.  E.  1,  13  L.  R.  A.  97 372 

tBurton  v.  Fulton,  49  Pa.  151 71 

tBush  v.  Brainard,  1  Cow.  78,  13  Am. 

Dec.  513  414 

tButler  v.  Jones,  80  Ala.  436,  2  South.  300  522 
Butler  v.  Peck,  16  Ohio  St.  334,  88  Am. 

Dec.  452  432 

Butterfleld  v.  Forrester,  11  East,  60.. 568,  571 
tBuzzell  T.  Mfg.  Co.,  48  Me.  113,  77  Am. 

Dec.  212  614 

tByam  v.  Bickford,  140  Mass.  31,  2  N. 

E.  687  404 

tByam  v.  Collins,  111  N.  Y.  143,  19  N.  E. 

75,  2  L.  R.  A.  129,  7  Am.  St.  Rep.  726  340 

tByard  v.  Holmes,  34  N.  J.  Law,  296 74 

tBynoe  v.  Bank  (1902)  1  K.  B.  467 28 

fByrne  v.  Farmington,  64  Conn.  367,  30 

Atl.  138  435 

tCabot   v.    Christie,    42    Vt.    121,    1    Am. 

Rep.  313  642 

tCahill  v.  Eastman,  18  Minn.  324  (Gil. 

292)  10  Am.  Rep.  184 565 

tCahill  T.  People,  106  111.  621 255 

Cairnes  v.  Bleecker,  12  Johns.  300 499 

Cairns  v.  Bleecker,  12  J.  R.  300 519 

tCalder  v.  Smalley,  66'  Iowa,  219,  23  N. 

W.  638,  65  Am.  Rep.  270 455 

tCaldwell  T.  Henry,  76  Mo.  254 641 

tCaldwell  T.  O'Neal,  117  Ga.  775,  45  S. 

E.  41  117 

Caledonian  Railway  v.  Sprot,  2  Macq. 

449  47 

Call  v.  Allen,  1  Allen,  137 470 

tCallahan  v.  Searles,  78  Hun,  238,  28  N. 

Y.  Supp.  904 222 

Callanan  v.  Oilman,  107  N.  Y.  360,  14  N. 

E.  264,  1  Am.  St  Rep.  831 69 

tCallanan  v.  Oilman,  107  N.  Y.  360,  14 

N.  E.  264,  1  Am.  St.  Rep.  831 455 

tCamfleld  v.  U.  S.,  167  U.  S.  523,  17 

Sup.  Ct.  866,  42  L.  Ed.  260 6 

Campbell  v.  Arnold,  1  Johns.  511 398 

Campbell  v.  Fleming,  1  Adol.  &  E.  40..  671 
tCampbell  v.  Railroad  Co.,  97  Md.  341, 

55  AtL  532 263,  266 

Campbell  v.  Seaman,  63  N.  Y.  568,  20 

Am.  Rep.  567 55,  451 

tCampbell  v.  Sherman,  35  Wis.  103 241 

tCampbfell  T.  Spottiswoode,  3  B.  &  S.  769  373 
Campbell  v.  Stakes,  2  Wend.  137,  19  Am. 

Dec.  561 164,  166,  508 

tCanning  v.  Owen,  22  R.  I.  624,  48  A. 

1033,  84  Am.  St.  Rep.  858 522 

tCarbondale  Co.  T.  Burdick  (Kan.)  72 

Pac.  781  263 

Car  Co.  v.  Laack,  143  111.  242,  32  N.  E. 

285,  18  L.  R.  A.  215 80 

Card  v.  Case,  57  E.  C.  L.  622 485 

Cardival  y.  Smith,  109  Mass.  158,  159,  12 

Am.  Rep.  682 279,  293 

Cardwell  v.  McClelland,  3  Sneed,  150...  646 

tCarey  V.  Rae,  58  Cal.  159 411 

tCarey  v.  Railroad  Co.,  1  Gush.  475,  48 

Am.    Dec.    616 62G 


CASES  CITED. 


ZXlli 


Page 
tCarhart  T.   Gaslight  Co.,  12  Barb.  297..  442 

Carl  v.  Ayers,  53  N.  Y.  14 228 

tCarlisle   v.    Sheldon,    38    Vt.    440 596 

tCarlton  v.  Henry,  129  Ala.  479.  29  South. 

924    121 

Carr  v.  Hood,  1  Campb.  365 70 

Carratt  v.    Morley,   1  Gale  &  Dav.   275; 

1  Ad.  &  El.  N.  S.  18 235,  236 

tCarroll   v.    Mix,   51   Barb.    212 522 

tCarroll   7.    Railroad    Co.,   58   N.   Y.    126, 

17   Am.    Rep.    221 138 

Carslake  v.   Mapledoram,  2  Term  R.  473  313 

Carter  v.  Andrews,  16  Pick.  1,  9 306 

tCartsr  v.  Andrews,  16  Pick.  1 388 

tCarter  v.  Harden,  78  Me.  528,  7  AtL  392  156 

Carrer  v.    Towne,   103   Mass.   507 99 

Gary's    Case,     Poph.     207 315 

tCasey  v.  Smith,  152  Mass.  294,  25  N.  E. 

734,  9  L.  R.  A.  259,  23  Am.  St.  Rep.  842  582 
tCassier   v.    Fales,    139    Mass.    461,    1    N. 

E.    922    246 

f Castor  v.   McShaffery,   48  Pa.   437 512 

Catlin  v.  Valentine,  9  Paige,  575,  38  Am. 

Dec.    567 421,    450 

tCavanagh  v.  Dinsmore,  12  Hun,   465 606 

Cavey  v.  Ledbitter,  13  C.   B.   (N.  S.)  470 

420,  421 
tCentral   R.   Co.   v.   Crosby,   74  Ga.   737, 

58   Am.    Rep.    463 600 

tCentral  R.  Co.  v.  Moore,  24  N.  J.  Law, 

824    569 

tCentral   Trust   Co.    v.    Railroad   Co.    (C. 

C.)   57   Fed.   441 84 

tChalliss  v.   Wylie,  35  Kan.   506,   11  Pac. 

438     141 

tChamberlain  v.   Boyd,  11  Q.  B.  D.   407..  327 
tChamberlain  v.  West  (Minn.)  33  N.  W. 

114     512 

tChambers  v.  Baldwin,  91  Ky.  121,  15  S. 

W.  57,  11  L.  R.  A.  545,  34  Am.  St.  Rep. 

165     117 

tChambers    v.    Carroll,    199    Pa.    371,    49 

Atl.    128    87 

Chambers  v.  Caulfield,  6  East,  244 650 

Chambers  v.    Porter,   5  Cold.   273 204 

Champer  v.   State,  14  Ohio  St.   437 195 

tChandler   v.    Walker,    21    N.    H.    282,    53 

Am.    Dec.    202 400 

tChapman  v.   Cole,  12  Gray,  141,  71  Am. 

Dec.    739 508,    517 

tChapman  v.  Dyett,  11  Wend.  31,  25  Am. 

Dec.    598    246 

tChapman  Y.    Ordway,   5  Allen,   593 353 

Chapman  v.   Railroad  Co.,   19  N.   Y.   341, 

75    Am.    Dec.    344 694 

Chapman   v.    State,   78  Ala.    463,   56   Am. 

Rep.    42    192 

tChapman  v.   State,   78  Ala.   463,   56  Am. 

Rep.    42    121 

Chapman    v.    Thumblethorp,    Cro.    Eliz. 

329     393 

tCharles   T.    Finchley    Board,    L.    R.    23 

Ch.    Div.    767,    775 482 

Char-less  v.   Rankin,   22   Mo.   566,   66  Am. 

Dec.    642    48 

Chase  v.   Corcoran,   106   Mass.    286,   288..  407 
Chase  T.   Sllverstone,   62  Me.   175,   16  Am. 

Rep.    419    59 

Chasemore  v.  Richards,  7  H.  L.  Cas.  349, 

385,    386,   5   Hurl.    &    N.    982 49,    59 

(•Chatham    Furnace    Co.    v.    Moffatt,    147 

Mass.  403,  18  N.  E.  168,  9  Am.  St.  Rep. 

727 644 


Page 

Cheatham  T.  Shearon,  1  Swan,  213 481 

Cheetham  v.  Mayor,  etc.,  L.  R.  10  C. 

P.  249  183 

Cheever  v.  Pearson,  16  Pick.  273 406 

Cheney  v.  Railroad  Co.,  11  Mete.  121, 

45  Am.  Dec.  190 208 

tCherry  v.  Des  Moines  Leader,  114  Iowa, 

298,   86  N.   W.   323.   54   L.   R.   A.   855,   89 

Am.  Sti  Rep.  365 373 

tChesebro  v.  Powers,  78  Mich.  472,  44  N. 

W.  290  385 

tChesley  v.  King,  74  Me.  164,  43  Am. 

Rep.  569  60 

tChester  v.  Dickerson,  54  N.  Y.  1.  13 

Am.  Rep.  550 170 

tChicago  v.  Ass'n,  102  111.  379,  40  Am. 

Rep.  598  69 

tChicago  City  v.  Robbins,  2  Black,  418, 

17  L.  Ed.  298 178 

tChicago  City  R.  Co.  v.  Tuohy,  196  111. 

410,  63  N.  E.  997,  58  L.  R.  A.  270 688 

tChicago  City  R.  Co.  v.  Wilcox,  138  111. 

370,  27  N.  E.  899,  21  L.  R.  A.  76 588 

tChicago,  St.  L.  &  P.  R.  Co.  v.  Bills,  104 

Ind.  13,  3  N.  E.  611 209 

tChicago  &  A.  R.  Co.  v.  Becker,  76  111.  25  598 
tChicago  &  A.  R.  Co.  v.  Logue,  158  111. 

621,  42  N.  E.  53 589 

tChicago,  etc.,  R.  Co.  v.  McBride,  54 

Kan.  172,  37  Pac.  978 79 

Chiffer's  Case,  T.  Raym.  275,  276 202 

Child  v.  Affleck,  9  Barn.  &  C.  403 356 

Chilton  v.  Railroad  Co.,  16  Mees.  &  W. 

212  224 

China,  The,  7  Wall.  53,  64,  19  L.  Ed.  67..  677 
tChina,  The,  7  Wall.  53,  54,  19  L.  Ed.  67. .  678 

Chinn  v.  Morris,  2  C.  &  P.  361 221 

tChipley  v.  Atkinson,  23  Fla.  218,  1 

South.  934,  11  Am.  St.  Rep.  367 117 

tChipman  v.  Palmer,  77  N.  Y.  51,  33 

Am.  Rep.  566 171 

Chivers  v.  Savage,  5  El.  &  Bl.  701 235 

tChoctaw,  O.  &  G.  R.  Co.  v.  McDade, 

191  U.  S.  64,  24  Sup.  Ct.  24,  48  L.  Ed.  614 
tChristlan  v.  Hanna,  58  Mo.  App.  37...  269 
tChristianson  v.  O'Nell,  39  Misc.  Rep. 

U,    78   N.   Y.    Supp.    757;     82   App.    Div. 

636,  81  N.  Y.  Supp.  1120 353 

tChristner  v.  Coal  Co.,  146  Pa.  67,  71,  23 

Atl.  221  67 

tChrysler  T.  Canaday,  90  N.  Y.  272,  43 

Am.  Rep.  166.. 656 

tChurchill  v.  Holt,  131  Mass.  67,  41  Am. 

Rep.  191  178 

Churchill  v.  Siggers,  3  El.  &  Bl.  929....  288 
tCincinnati,  H.  &  D.  R.  Co.  v.  Kassen, 

49    Ohio    St.    230,    31    N.    E.    282,    16    L. 

R.  A.  674 571 

tCincinnati,  H.  &  D.  R.  Co.  v.  McMul- 

len,  117  Ind.  439,  20  N.  E.  287,  10  Am. 

St.  Rep.  67 683 

tCity  of  Allegheny  v.  Zimmermann,  95 

Pa.  287,  40  Am.  Rep.  649 84 

tCity  of  Camden  v.  Allen,  26  N.  J.  Law, 

398,  403  36 

tCity  of  Chicago  v.  Ass'n,  102  111.  379, 

40  Am.  Rep.  598 467 

tCity  of  Chicago  v.  Babcock,  143  111.  358, 

32  N.  E.  271 180 

tCity  of  Chicago  v.  Robbins,  2  Black, 

418,  17  L.  Ed.  298 609 

City  of  DUon  v.  Scott,  81  111.  App.  368  78 


XX1Y 


CASES   CITED. 


Page 
tCity  of  Evanavllle  T.  Scnhenn,  151  Ind. 

42,  47  N.  E.  634,  51  N.  E.  88,  41  L.  R. 

A.  728,  68  Am.   St.   Rep.   218 588 

tCity  of  Pekin  v.   McMahon,  154  111.  141, 

39  N.   E.   484,   27  L.    R.   A.   206,  45  Am. 

'    St.    Rep.    114,   141 577 

tCity  of  Quincy  v.  Jones,  76  111.  231,  20 

Am.    Rep.    243 51 

tCity   of   Roanoke  v.    Shull,    97   Va.   419, 

34  S.  E.  34,  75  Am.  St.  Rep.  791 588 

tCity   of   Rochester   v.    Campbell,   123   N. 

Y.   405,   25  N.   E.   937r  10  L,.   R.   A.  393, 

20  Am.   St    Rep.   760 32 

City  of  Rochester  T.  Montgomery,  72  N. 

Y.    65    177 

tCity  of  Roodhouse  v.  Christian,  158  111. 

137,    41   N.    E.    748 171 

City  of  Tiffin  v.  McCormack,  34  Ohio  St. 

638,   32  Am.   Rep.   408 56 

tCity  of  Waverly  v.  Page,  105  Iowa,  225, 

74  N.   W.   938,  40  U   R.   A.   465 435 

tCity  &  S.  R.  Co.  Y.  Moores,  80  Md.  348, 

30  Atl.   643,   45  Am.    St.    Rep.   345 609 

Claflin  v.  Carpenter,  4  Mete.  (Mass.)  580, 

38    Am.    Dec.    381 406 

Clapp  v.   Thaxter,  7  Gray,  384 474 

Clark   T.    Bales,   15   Ark.    452 172 

Clark  T.   Binney,   2   Pick.    113,    116 330 

tClark  T.   Brown,   18  Wend.   220 35 

Clark  T.   Carlton,   1   N.    H.   110 495 

Clark   Y.   Chambers,   3  Q.    B.    Div.   327...    98 

Clark  T.  Cleveland,  6  Hill,  344 262,  279 

tClark  v.   Cleveland,   6  Hill,   344 277 

tClark  v.  Draper,  19  N.  H.  419 512 

Clark  v.  Fitch,  2  Wend.  459,  20  Am.  Dec. 

639    552 

Clark  Y.  Ice  Co.,  24  Mich.  508 478 

Clark  Y.  Montague,  1  Gray,  446,  448 277 

tClark  Y.   Peckham,  10  R.   I.   35,  14  Am. 

Rep.   654  467 

tClark    v.    Railroad    Co.,    145   Pa.    438,    22 

Atl.  989,  27  Am.   St.   Rep.   710 43 

tClark  v.  Starin,  47  Hun,  345 226 

tClark  v.  Wilson,  14  R.  I.  11 546 

Clarke  Y.  Dickson,  6  C.  B.   (N.  S.)  453..  671 

Clarke  v.   Holmes,  7  H.  &  N.  937 617 

"Clarke  Y.  May,  2  Gray,  410,  61  Am.  Dec 

470   535 

Clarke  Y.  Roe,  4  Ir.  C.  L.  1 378 

tClarkson  Y.  Lawson,  6  Bing.  587 353 

tClasen  Y.  Pruhs  (Neb.)  95  N.  W.  640...  212 
tClay  v.  Telegraph  Co.,  81  Ga.  285,  6  S. 

E.  813,  12  Am.  St.  Rep.  316 67 

Clayards  Y.  Dethick,  12  Q.  B.  439 568 

tCleary  v.   Booth   (1893)  1  Q.  B.  465 25 

tCleary  v.  Booth  (1893)  1  Q.  B.  465 212 

tClemens  v.   Speed,  93  Ky.  284,  19  S.  W. 

660,  19  L,.  R.  A.  240 50,  51 

Clement  Y.  Chivis,  9  Barn.  &  C.  172 330 

tClemmons   Y.    Danforth,    67    Vt.    617,    32 

Atl.  626,  48  Am.  St.  Rep.  836 379 

tCleveland  v.    Steamboat  Co.,   125  N.   Y. 

299,   26  N.   E.   327 130 

tCleveland  Rolling  Mill  Co.  Y.   Corrigan, 

46  Ohio  St.   283,   20  N.   E.   466,   3  L.   R. 

A.  385  577 

Clifford  Y.  Cotton  Mills,  146  Mass.  47,  15 

N.   E.  84,  4  Am.   St.   Rep.  279 96 

tClifford   Y.    Cotton   Mills,    146   Mass.    47, 

\5  N.  E.  84,  4  Am.  St.  Rep.  279 463 

tClifford  Y.  Dam,  81  N.  Y.  52 455 


Page 
Clinton  Bridge,  In  re,  10  Wall.  454,  463, 

19  L.  Ed.  969 474 

Closson  v.  Staples,  42  Vt.  209,  1  Am.  Rep. 

316  286 

Clowes  v.  Potteries  Co.,  L.  R.  8  Ch.  App. 

125  422,  423 

Coal  Co.  Y.  McGuire,  3  Macq.  300 620 

Coal  Co.  Y.  Reid,  3  Macq.  266,  275 611,  621 

Cockayne  Y.  Hodgkisson,  6  Car.  &  P. 

543  367 

Cockcroft  v.  Smith,  2  Salk.  642 197 

Cocke  v.  Jennor,  Hob.  66 180 

Codman  v.  Freeman,  3  Cush.  314 544 

Codrington  v.  Lloyd,  8  Ad.  &  El.  449 236 

tCodrington  Y.  Lloyd,  8  Ad.  &  El.  449..  246 
tCody  v.  Railroad  Co.,  151  Mass.  462,  24 

N.  E.  402,  7  L.  R.  A.  843 598 

tCoffin  Y.  Brown,  94  Md.  190,  50  Atl.  567, 

55  L.  R.  A.  732,  89  Am.  St.  Rep.  422.  .352,  372 
Coffin  Y.  Coffin,  4  Mass.  1,  3  Am.  Dec. 

189  375 

tCoffin  Y.  Coffin,  4  Mass.  1,  3  Am.  Dec. 

189  379 

tCoffin  Y.  Field,  7  Cush.  355,  358 36 

Coggs  Y.  Bernard,  2  Ld.  Raym.  909;  1 

Salk.  26  74,  147 

Coggswell  Y.  Baldwin,  15  Vt.  404,  40  Am. 

Dec.  686  486 

Cogswell  Y.  Railroad  Co.,  103  N.  Y.  10,  8 

N.  E.  537,  57  Am.  Rep.  701 54 

tCogswell  v.  Railroad  Co.,  103  N.  Y.  10, 

8  N.  E.  537,  57  Am.  Rep.  701 474 

tCohen  Y.  Mayor,  etc.,  113  N.  Y.  532,  21 

N.    E.   700,  4  L.   R.   A.   406,   10  Am.    St. 

Rep.  506  455 

tCohn  v.  Saidel,  71  N.  H.  558,  53  Atl. 

800 266,  269,  270 

Coker  v.  Birge,  10  Ga.  336 481 

Colby  Y.  Reynolds,  6  Vt.  489,  27  Am. 

Dec.  574  330 

tCole  v.  Kegler,  64  Iowa,  59,  19  N.  W. 

843  477 

tCole  Y.  Society,  59  C.  C.  A.  593,  124  Fed. 

113  100 

tCollard  v.  Beach,  81  App.  DiY.  582,  81 

N.  Y.  Supp.  619 678 

tCollier's  Adm'r  Y.  Windham,  27  Ala. 

291,  62  Am.  Dec.  767 178 

Collins  Y.  Com'rs,  1  R.  4  C.  P.  279 105 

tCollins  Y.  Jackson,  54  Mich.  186,  19  N. 

W.  947  655 

Collins  Y.  Maltn,  Cro.  Car.  382 316 

tCollins  Y.  Railroad  Co.,  142  Mass.  301, 

7  N.  E.  856,  56  Am.  Rep.  675 577 

tCollins  Y.  Todd,  17  Mo.  537 206 

tColrick  v.  Swinburne,  105  N.  Y.  503,  12 

N.  E.  427 440 

Colter  v.  Lower,  35  Ind.  285,  9  Am.  Rep. 

735,    7    Amer.    &    Eng.    Enc.    Law,    663, 

664  264 

tComer  Y.  Knowles,  17  Kan.  436,  440 222 

fComford  v.  Carlton  Bank  (1899)  1  Q.  B. 

392;  (1900)  1  Q.  B.  22 263 

Comfort  v.  Fulton,  39  Barb.  56 228 

Commerce  Co.  Y.  Levi,  21  Tex.  Civ.  App. 

109,  50  S.  W.  606 286 

Commercial  Bank  Y.  Ten  Eyck,  48  N.  Y. 

305  67 

tCom'rs  v.  Duckett,  20  Md.  468 35 

Com.  Y.  Alger,  7  Cush.  53,  85 471 

Com.  Y.  Boimer,  9  Mete.  410 70 


CASES  CITED. 


xxv 


Page 
Com.  v.  Call,  21  Pick.  815,  523,  32  Am. 

Dec.  284  667,  668 

Com.  v.  Carey,  12  Cush.  252 258 

tCom.  T.  Carey,  12  Cush.  246 255 

Com.  y.  Chemical  Works,  16  Gray,  231- 

233  470 

Com.  T.  Clap,  4  Mass.  165 372 

Com.  v.  Clark,  2  Mete.  (Mass.)  23,  25.. 202,  203 

tCom.  v.  Clark.  2  Mete.  (Mass.)  23 200 

Com.  v.  Collberg,  119  Mass.  350,  20  Am. 

Rep.  328  193,  195 

Com.  v.  Grotty,  10  Allen,  404,  87  Am. 

Dec.  669  248 

Com.  v.  Devlin,  141  Mass.  423,  431,  6  N. 

E.  64  202 

Com.  v.  Essex  Co.,  13  Gray,  239,  247 472 

tCom.  v.  Eyre,  1  Serg.  &  R.  347 190 

Com.  T.  Harley,  7  Mete.  462 667,  668 

Com.  v.  Kennard,  8  Pick.  133 202 

Com.  v.  Kidder,  107  Mass.  188.. 472 

tCom.  T.  Kidder,  107  Mass.  188 452 

tCom.  T.  Kneeland,  20  Pick.  206 310 

Com.  T.  Lynn,  123  Mass.  218 202 

Com.  T.  McCue,  16  Gray,  226,  227 202 

Com.  T.  McDonough,  13  Allen,  581,  584..  472 

Com.  v.  McDuffy,  126  Mass.  467 203 

Com.  v.  McKle,  61  Am.  Dec.  410 192 

tCom.  v.  McKle,  1  Gray,  61,  63,  61  Am. 

Dec.  410  193 

tCom.  v.  Miller,  139  Pa.  77,  21  Atl.  138, 

23  Am.  St.  Rep.  170 429 

Com.  v.  Odell,  3  Plttsb.  449-459 372 

Com.  v.  Railroad  Co.,  14  Gray,  93,  97...  474 

Com.  v.  Randall,  4  Gray,  36 211 

Com.  v.  Snelling,  15  Pick.  337 266 

Com.  v.  Stebbins,  8  Gray,  492 202,  203 

tCom.  v.  Tobin,  108  Mass.  426,  11  Am. 

Rep.  375  412 

Com.  v.  White,  110  Mass.  407 187 

tCom.  v.  White,  110  Mass.  407 187 

Com.  v.  Woodward,  102  Mass.  155,  161...  200 
tCom.  v.  Wright,  158  Mass.  149,  33  N. 

E.  82,  19  L.  R.  A.  206,  35  Am.  St.  Rep. 

475  258 

tCom.  Insurance  &  Trust  Co.  v.  Dokko, 

71  Minn.  533,  74  N.  W.  891 141 

Condlt  v.  Baldwin,  21  N.  Y.  219,  225, 

78  Am.  Dec.  137 184 

tCongregation  v.  Smith,  163  Pa.  561,  30 

Atl.  279  609 

tConhocton  Stone  Road  v.  Railroad  Co., 

51  N.  Y.  573,  10  Am.  Rep.  646 463 

tConklln  v.  Thompson,  29  Barb.  218 164 

Connah  v.  Hale,  23  Wend.  462 123 

Connecticut  Mut.  Life  Ins.  Co.  v.  Rail- 
road Co.,  25  Conn.  265,  65  Am.  Dec. 

571  624 

^Conner  T.  Publishing  Co.,  183  Mass. 

474,  67  N.  E".  596 353,  373 

Conroy  v.  Iron  Works,  62  Mo.  35 616 

tConsolidated  Traction  Co.  v.  Scott,  58 

N.   J.   Law,   682,   34   Atl.   1094,   33   L.   R. 

A.  122,  55  Am.  St.  Rep.  620 577 

tConverse  v.  Sickles,  146  N.  Y.  200,  40 

N.  EJ.  777,  48  Am.  St.  Rep.  790 516 

tConway  v.  Railroad  Co.,  90  Me.  199, 

38  Atl.  110 67 

Cook  v.  Cook,  100  Mass.  194 387 

Cook  v.  Stearns,  11  Mass.  533 406 

Cooke  v.  Forbes,  L.  R.  5  Eq.  166.  ...421,  422 
tCool  T.  Crommet,  13  Me.  250 414 


Page 
tCooley  T.  Galyon,  109  Tenn.  1,  70  S. 

W.  607,  60  L.  R.  A.  139 379 

Coomes  v.  Houghton,  102  Mass.  211,  213, 

214  184 

tCooney  v.  Burke,  11  Neb.  258,  9  N.  W. 

57  181 

Cooper  v.  Armour  (C.  C.)  42  Fed.  215, 

8  L.  R.  A.  47 287 

tCooper  v.  Cooper,  147  Mass.  370,  373, 

17  N.  E.  892,  9  Am.  St.  Rep.  721 141 

Cooper  v.  Harding,  7  Ad.  &  El.  (N.  S.) 

928  235 

tCooper  T.  Newman,  45  N.  H.  339 517 

Cooper  v.  Randall,  53  111.  24 421 

tCooper  v.  Schlesinger,  111  U.  S.  148, 

4  Sup.  Ct.  360,  28  L.  Ed.  382 641 

Corbett  v.  Brown,  8  Bing.  33 630,  631 

Corby  v.  Hill,  4  C.  B.  (N.  S.)  556 556 

Corcoran  v.  Holbrook,  59  N.  Y.  517,  17 

Am.  Rep.  367 611 

tCorey  v.  Havener,  182  Mass.  250,  65  N. 

E.  69  170 

Corning  v.  Nail  Factory.  40  N.  Y.  191, 

220  422,  440 

Cornwall  v.  Railroad,  28  N.  H.  167 415 

tCornwell  v.  Parke,  52  Hun,  596,  5  N. 

Y.   Supp.   905;    123  N.  Y.  657,  25  N.   E. 

955  385 

tCorr  v.  Ass'n,  177  N.  Y.  131,  69  N.  E. 

288  383 

fCorrigan  v.  Elsinger,  81  Minn.  42,  83 

N.  W.  492 609 

Cortelyou  v.  Van  Brunt,  2  Johns.  R.  363  390 
Corthell  v.  Holmes,  87  Me.  24,  32  Atl. 

715  479 

Cosulich  v.  Oil  Co.,  122  N.  Y.  118,  25  N. 

E.  259,  19  Am.  St.  Rep.  475 98 

Cotton  v.  U.  S.,  11  How.  229,  13  L.  Ed. 

675  6SO 

tCottrill  v.  Krum,  100  Mo.  397,  13  S. 

W.  753,  18  Am.  St.  Rep.  549 666 

tCottrill  v.  Railroad  Co.,  47  Wis.  634,  3 

N.  W.  376,  32  Am.  Rep.  796 600 

Couch  v.  Steel,  3  El.  &  Bl.  402 30 

tCoulter  v.  Clark,  160  Ind.  311,  66  N.  E. 

739 666 

Count  Joannes  v.  Bennett,  5  Allen,  169, 

81  Am.  Dec.  738 364 

tCountryman  v.  Lighthill,  24  Hun,  405...  477 

tCoupal  v.  Ward,  106  Mass.  289 237 

Courtis  v.  Cane,  32  Vt  232,  76  Am.  Dec. 

174  517 

tCoventry  v.  Barton,  17  Johns.  142,  8 

Am.  Dec.  376 178 

tCovert  v.  Cranford,  141  N.  Y.  521,  527, 

36  N.  E.  297,  38  Am.  St  Rep.  826 459 

tCovington  &  C.  Bridge  Co.  v.  Stein- 
brock,  61  Ohio  St.  215,  55  N.  E.  618, 

76  Am.  St.  Rep.  375 610 

Cowles  v.  Dunbar,  2  Car.  &  P.  565 250 

Cowley  v.  Smyth,  46  N.  J.  Law,  380, 

50  Am.  Rep.  432 642 

tCowley  v.  Smyth,  46  N.  J.  Law,  380, 

50  Am.  Rep.  432 642,  644,  654 

tCox  v.  Highley,  100  Pa.  249 642 

tCoxe  v.  Whitney,  9  Mo.  531 206 

Coxhead  v.  Richards,  2  Man.  G.  &  S. 

569,  601  360 

Craft  v.  Boite,  1  Saund.  243,  note  n...J33,  386 
Cragln  T.  Lovell,  88  N.  Y.  258 679 


XXVI 


CASES  CITED. 


Page 


tCraig  v.  Glnn.  I  Pennewlll,  117,  48  Atl. 
192.  53  L.   R.   A.  715,  94  Am.   St.   Rep. 


77 


277 


Grain  v.    Petrie,   6  Hill,   522-524,   41  Am. 

Dec.   765 324,   325,   384 

fCraker  v.  Railroad  Co.,  36  Wis.   657,  17 

Am.    Rep.   504 191 

Cramer  v.  Cullinane,  2  McArthur,  197...  387 
tCrane    v.    Darling,    71   Vt.    295,    44    Atl. 

359    322 

tCrane    Elevator    Co.    v.    Lippert,    11   C. 

C.   A.   521,   63  Fed.   942 137 

tCranford   v.    Tyrrell,    128   N.    Y.   341,   28 

N.    E.    614 467 

tCraven  v.  Bloomingdale,  in  N.  Y.   439, 

64  N.    E.   169 226 

tCrawford    v.    Rambo,    44   Ohio    St.    279, 

7  N.   E.  429 83 

Crawshay  v.  Thompson,  4  Man.  &  G.  357  631 
fCrescent    Live    Stock    Co.    v.    Butchers' 

Co..   120   U.    S.    141,   7   Sup.   Ct.   472,    30 

L.    Ed.   614 263,   270 

tCristie  v.   Cowell,  Peake,  4 311 

Crittal  v.   Homer,   Hob.   219 313 

tCrocker  v.   Carson,    33  Me.    436 394 

Crockery  Co.   v.   Haley,   6  Wash.   302,   33 

Pac.    650,    36   Am.    St.    Rep.    156 286 

tCromwell's  Case,  4  Coke,  13 311 

tCrook   v.    Pitcher,    61   Md.    510 467 

Cropp  v.  Tilney,  3  Salk.  226 329 

tCrosby  v.  Humphreys  (Minn.)  60  N.  W. 

843     205 

tCrosland   v.    Pottsville,    126   Pa.    511,    18 

Atl.   15,  12  Am.   St.  Rep.   891 482 

Cross    v.    Guthery,    2    Root,    90.    1    Am. 

Dec.    61   624 

Cross  y.   Kent,   32  Md.   581 127 

Crosse  v.    Gardner,   Carth,  90 629 

tCroswell  v.  Weed,  25  Wend.   621 383 

tCrowell  v.   Jackson,  53  N.   J.   Law,   656, 

23   Atl.    426 642 

tCrown  Cycle  Co.  v.  Brown,  39  Or.   285, 

64    Pac.    451 141 

tCroyle  v.  Moses,  90  Pa.  250,  35  Am.  Rep. 

654    648 

tCruikshank   v.    Gordon,    118   N.    Y.    178, 

23  N.    E.   457 322 

Crump  v.  Lambert,  L.  R.  3  Eq.  408,  409 

421,  447 

Cubitt  v.   Porter,  8  Barn.   &  C.   269 403 

Cuddy  v.   Horn,   46   Mich.   596.   10  N.   W. 

32,  41  Am.   Rep.   178 595 

Cuff  v.    Railroad   Co.,  35  N.  J.   Law,   17, 

10  Am.   Rep.  205 96,  99, 

tCuff  v.  Railroad  Co.,  35  N.  J.  Law,  17, 

10    Am.    Rep.     205 609 

tCullen  v.  Railroad  Co.,  8  App.  D.  C.  69  572 

Cummings    v.    Vorce,    3    Hill,    283 140 

Cunningham  v.    Bucklin,   8  Cow.   178,   18 

Am.     Dec.    432 538 

tCurran  v.  Galen,  152  N.  Y.  33,  46  N.  E. 

297,   37  L.   R.    A.   802,   57  Am.    St.   Rep. 

496     '. 300 

Currier  v.   Swan,   63  Me.  323 172 

Curtin   T.    Somerset,   140   Pa.   70.   21  Atl. 

244     97 

tCurtin   v.   Somerset,   140  Pa.   70,   21  Atl. 

244,   12  L.   R.   A.   322,   23  Am.    St.   Rep. 

220 156 

Curtis  v.   Carson,  2  N.  H.   539 197 

Curtis    v.    Curtis,    10    Bing.    477 305 


Page 
tCurtls  T.  Hubbard,  1  Hill,  838,  4  Hill, 

437,  40  Am.  Dec.  292 214,  412,  546 

Curtis  v.  Mussey,  6  Gray,  261 372 

Curtiss  v.  Hoyt,  19  Conn.  154,  48  Am. 

Dec.  149  399 

Gushing  v.  Breck,  10  N.  H.  Ill,  116 522 

tCushman  v.  Ryan,  1  Story,  100,  Fed. 

Cas.  No.  3,515 205 

tCusick  v.  Adams,  115  N.  Y.  59,  21  N.  E. 

673,   12  Am.   St.   Rep.   772 557 

Daln  T.  Wycoff,  7  N.  Y.  191 553 

tDalay  T.  Savage,  145  Mass.  38,  12  N. 

E.  841,  1  Am.  St.  Rep.  429 463 

Dale  v.  Harris,  109  Mass.  196 356 

Daley  v.  Railroad  Co.,  26  Conn.  591,  68 

Am.  Dec.  413 579 

tDalton  v.  Angus,  L.  R.  6  A.  C.  740 51 

fDanenhoffer  v.  State,  69  Ind.  295,  35  Am. 

Rep.  216;  79  Ind.  75 212 

tDanforth  v.  Gushing,  77  Me.  182 74 

Daniels  v.  Potter,  4  Car.  &  P.  262 104 

fDaniels  y.  Railroad  Co.,  154  Mass.  349, 

28  N.   E.   283,   13  L.   R.   A.  248,   26  Am. 

St.  Rep.  253 577 

Danville,  etc.,  T.  Co.  v.  Stewart,  2  Mete. 

(Ky.)  119  595 

Darling  v.  Williams,  35  Ohio  St.  63 195 

tDashiel  v.  Harshman,  113  Iowa,  283,  85 

N.  W.  85 656 

Daumiel  v.  Gorham,  6  Gal.  44 544 

fDauncey  v.  Holloway  (1901)  2  K.  B.  441  318 

David  v.  Park,  103  Mass.  501 665 

fDavld  v.  Park,  103  Mass.  501 666 

Davidson  v.  Nichols,  11  Allen,  514 98 

tDavidson  v.  Nichols,  11  Allen,  514 156 

Davies  v.  Mann,  100  Mees.  &  W.  546..  568 
tDavies  v.  Solomon,  L.  R.  7  Q.  B.  112..  327 
tDavis  v.  Carey,  141  Pa.  314,  21  Atl.  633  304 
tDavis  v.  Society,  129  Mass.  367,  37  Am. 

Rep.  368  557 

Davis  v.  Clancy,  3  McCord,  422 398 

Davis  v.  Gardiner,  4  Coke,  17 Ill 

tDavis  v.  Gardiner,  4  Coke,  16b 62 

tDavis  v.  Getchell,  60  Me.  602,  79  Am. 

Dec.  636 440 

tDavis  v.  Guarnieri,  45  Ohio  St.  470,  15  N. 

E.  350,  4  Am.  St.  Rep.  548 162 

Davis  v.  Hardy,  6  Barn.  &  C.  225 271 

Davis  v.  Lambertson,  56  Barb.  480 421 

tDavis  v.  Lottich,  46  N.  Y.  395 515 

Davis  v.  Nash,  32  Me.  411 399 

tDavis  T.  Nuzum,  72  Wis.  439,  40  N.  W. 

497,  1  L,  R.  A.  774 644 

tDavis  v.  Railroad  Co.,  55  Vt.  84,  45  Am. 

St.  Rep.  590 614 

Davis  v.  Russell,  5  Bing.  354 250 

Davis  v.  Saunders,  2  Chit.  639 129 

Davis  v.  Sawyer,  133  Mass.  289,  43  Am. 

Rep.  519 447,  468 

tDavis  v.  Sawyer,  133  Mass.  289 448 

tDavis  v.  Shepstone,  L.  R,  11  App.  Cas. 

187  372 

Davis  v.  Sims,  Lalor,  Supp.  234 660 

tDavis  V.  Starrett,  97  Me.  ^68,  55  Atl.  516  327 

Davis  v.  Whitridge,  2  Strob.  232 203 

tDawe  v.  Morris,  149  Mass.  188,  21  N.  E. 

313,  4  L.  R.  A.  158,  14  Am.  St.  Rep.  404  74 
Dawkins  v.  Rokeby,  L.  R.  7  H.  L.  744; 

L.  R.  8  Q.  B.  255 26 


CASES  CITED. 


XXV 11 


Page 
tDawklns  v.  Lord  Rokeby,  I*.  R.  7  H.  L. 

744   379 

Day  v.  Bach,  87  N.  Y.  66 242,  243 

tDay  v.  Brownrigg,  L.  R.  10  Ch.  Div.  294     9 

Day  v.  Day,  4  Md.  262,  270 478 

fDayton  v.  Railroad  Co.,  81  Hun,  284,  80 

N.   Y.    Supp.   783 416 

Dean  v.  Peel,  5  East,  45 551,  552 

tDean  v.   Peel,   5  East,  45 553 

Dean  v.  Railroad,  22  N.  H.  317 414 

tDean  v.  Ross,  178  Mass.  397,  60  N.  E.  119  666 

tDean  v.  State,  89  Ala.  46,  8  South.  38 212 

tDearbourn  v.  Bank,  58  Me.  273 622 

Debevoise  v.   Railroad  Co.,  98  N.  Y.  377, 

60  Am.   Rep.   683 682 

tDebevoise  v.  Railroad  Co.,  98  N.  Y.  377, 

60  Am.  Rep.  683 684 

tDecker  v.  Fredericks,  47  N.  J.  Law,  469, 

1   Atl.    470 648 

Decker  v.  Mathews,  12  N.  Y.  313 519 

Deford  v.  Miller,  3  Pen.  &  W.  105 380 

tDeisenrieter    v.    Kraus-Merkel    Co.,    97 

Wis.    279,    72   N.    W.    735 91 

tDelafoile  v.  State,  54  N.  J.  Law.  381,  24 

Atl.  557,  16  L.  R.  A.  500 214 

Delahoussaye  v.  Judlce,  13  La.  Ann.  587, 

71  Am.  Dec.  521 432 

tDelaware  Ins.  Co.  v.  Croasdale,  6  Houst. 

(Del.)  181 351 

tDelaware,  L.  &  W.  R.  Co.  v.  Buffalo,  158 

N.  Y.  266,  53  N.  E.  44 474 

tDelaware,  L.  &  W.   R.  Co.  v.  Reich,  61 

N.  J.  Law,  635,  40  Atl.  682,  41  L.  R.  A. 

831,  68  Am.  St.   Rep.   727 577 

tDelaware,  L.  &  W.  R.  Co.  v.  Salmon,  39 

N.  J.  Law,  299,  23  Am.  Rep.  214 79 

tDelaware,  L.  &  W.  R.  Co.  v.  Trautwein, 

52  N.  J.  Law,  169,  19  Atl.  178,  7  L.  R.  A. 

435,  19  Am.  St.  Rep.  442 82,  138 

Delegal  v.  Highley,  3  Bing.  N.  C.  950....  268 

fDelong  v.   Curtis,  35  Hun,  94 180 

tDelz   v.   Winfree,   80  Tex.   400,   16  S.   W. 

Ill,  26  Am.   St.  Rep.  755 300 

tDemarest  v.  Hardham,  34  N.  J.  Eq.  469..  429 

Deming  v.  Barclay,  2  B.  &  A.  702 619 

Doming  v.  Darling,  148  Mass.  504,  20  N.  E. 

107,  2  L.  R.  A.  743 655 

tDeming  v.  Darling,  148  Mass.  504,  20  N. 

B.  107,  2  L.  R.  A.  743 648,  662 

tDeming  v.  Railway,  169  N.  Y.  1,  61  N.  E. 

983,  88  Am.  St.  Rep.  521,  L.  R.  8  App. 

Cas.  443 610 

Denison  v.  Lincoln,  131  Mass.  236 82 

Dennick  v.  Railroad  Co.,  103  U.  S.  11,  26 

L.   Ed.  439 682 

tDennick  v.  Railroad  Co.,  103  U.  S.  11,  26 

L.   Ed.  439 678,  684 

Dent  v.  Auction  Mart  Co.,  35  Law  J.  Ch. 

655   422 

De  Pew  v.   Robinson,  96  Ind.   109 322 

De  Roo  v.  Foster,  12  C.  B.  (N.  S.)  272 168 

Derry  v.    Flitner,   118   Mass.    131 98 

tDerry  v.  Peek,  L,  R.  14  App.  Cas.  376.. 

20,  638,  642,  644 

Devine  v.  Mills,  90  N.  Y.  637 226 

tDevlin  v.    Smith,   89  N.   Y.  470,   42  Am. 

Rep.    311 162 

Devoll  v.    Brownell,  5  Pick.   448 18 

Dexter  v.  Spear,  4  Mason,  115,  Fed.  Cas. 

No.    3,867 330 

Deyo  T.  Stewart,  4  Denio,  101 414 


Page 

Dibdin  T.  Swan,  1  Esp.  28 70 

Dicas  v.  Lord  Brougham,  6  Car.  &  P.  249  538 
tDicken  v.  Salt  Co.,  41  W.  Va.  511,  23  S. 

E.  582 588 

tDicken  v.   Shepherd,  22  Md.  399 316 

Dickinson  v.  Barber,  9  Mass.  225,  6  Am. 

Dec.    68 127 

Dickinson  v.  Worcester,  7  Allen,  19 432 

tDiehl  v.  Friester,  37  Ohio  St.  473 264 

Dimes  v.  Petley,  15  Q.  B.  276 478 

Dixon  v.  Bell,  5  Maule  &  S.  198...  102,  108,  161 
Dodge  T.  Colby,  108  N.   Y.  445,  15  N.   E. 

703    680 

Doggett  T.  Railroad  Co.,  34  Iowa,  284 669 

Dole  v.   Erskine,  35  N.  H.   503 195 

Dolph  v.  Ferris,  7  Watts  &  S.  367,  42  Am. 

Dec.    246 396 

tDonahoe  T.  Publishing  Co.  (Del.)  65  Atl. 

337    372 

tDonahue  v.    Kelly,   181  Pa.   93 598 

Donald  v.  Humphrey,  14  Fed.  (Sc.)  1206..  419 
tDonaldson   v.    Farwell,   93   U.    S.   631,    23 

L.     Ed.     993 656 

fDonnegan  v.  Erhardt,  119  N.  Y.  468,  23 

N.  E.  1051,  7  L.  R.  A.  527 32 

tDonnelly  v.  Harris,  41  111.  126 205 

tDonnelly  v.  Railroad  Co.,  109  N.  Y.  16, 

15    N.    E.    733 596 

tDooling    v.    Publishing    Co.,    144    Mass. 

258,  10  N.  E.  809,  59  Am.   Rep.  83.... 71,  388 
tDoolittle  v.   Shaw   (Iowa)   60  N.   W.   621, 

26  L.   R.  A.   366,  54  Am.   St.  Rep.  562..  508 

tDore  v.  Milwaukee,  42  Wis.  108 35 

tDorn  v.  Backer,   61  N.   Y.  267 538 

tDorr  v.  Cory,  108  Iowa,  725,  78  N.  W.  682  656 

tDorrity  v.  Rapp,  72  N.  Y.  307,  310 51 

Doswell  v.  Impey,  1  Barn.  &  C.  163 538 

Dottarer  v.   Bushey,    16   Pa.   204 382 

tDoty  v.  Kurd,   124  Mich.   671,  83  N.  W. 

632    234 

tDouglass    v.    Daisley,    52    C.    C.    A.    324, 

114  Fed.   623,  57   L.  R.   A.   475 369 

Dovaston  v.  Payne,  2  H.  Bl.  527 415 

tDowd  v.  Tucker,   41  Conn.  197 656 

fDowling   v.    Lawrence,    58   Wis.    282,    16 

N.    W.    552 647 

tDowning  v.  Dearborn,  77  Me.  457,  1  Atl. 

407    647 

tDowns    v.    Finnegan,    58    Minn.    112,    59 

N.  W.   981,   49  Am.   St   Rep.   488 141 

tDowns   v.    Hawley,    112   Mass.    237 352 

Doyley  v.  Roberts,  3  Bing.  N.  C.  835 318 

Drake,   Ex  parte,  5  Ch.  Div.  866 624 

Drake  v.   Barrymore,   14  Johns.   166 170 

tDrake  v.   Kiely,  93  Pa.   492 181 

Drake  v.    Mitchell,    3  East,    251 525 

tDrake  v.  State,  53  N.  J.  Law,  23,  20  Atl. 

747    351 

fDraper  v.  Baker,  61  Wis.  450,  21  N.  W. 

527,  50  Am.   Rep.   143 191 

Ore  we  v.  Coulton,  1  East,  563,  note 38 

Driggs   v.    Burton,   44  Vt   124 279 

tDriggs  v.  Phillips,  103  N.  Y.  77,  8  N.  E. 

514     425 

tDriscoll    v.    Scanlon,    165    Mass.    348,    43 

N.   B.   100,   52  Am.    St.   Rep.   523 606 

tDubois  v.   Beaver,  25  N.  Y.  123,   128,  82 

Am.    Dec.    326 404 

Dubois  T.  Budlong,  15  Abb.  Prac.  445 

450.  451 


XXV111 


CASES  CITED. 


Page 
fDu  Breull  v.  Pennsylvania  Co.,  130  Ind. 

137,    29    N.    E.    909 680 

fDucktown      Sulphur     Co.       v.      Barnes 

(Tenn.)    60   S.    W.   593 425,429 

Duckworth  v.  Johnson,  4  H.  &  N.  653....  67 
fDudley  v.  Briggs,  141  Mass.  582,  6  N.  E. 

717,    65    Am.    Rep.    494 388 

tDudley  v.  Mayhew,  3  N.  Y.  9 35 

fDuffany  v.   Ferguson,  66  N.  Y.  482 656 

Duffleld'B  Case  (1851)  5  Cox,  C.  C.  404....  299 

tDufour  v.  Anderson,  95  Ind.  302 495 

Dufresne  v.  Hutchlnson,  3  Taunt.  117 498 

Duke    of    Grafton    v.    Milliard     (not    re- 
ported)   419 

Duke  of  Newcastle  v.  Clark,  8  Taunt.  602  538 

tDumont  v.   Smith,  4  Denio,  319 402 

Dunlap    v.    Glidden,   31   Me.   435,   52  Am. 

Dec.    625    27,  625 

Dunlop   v.    Munroe,   7  Cranch,   242,   3  L, 

Ed.    329    543 

tDunn  v.   Railroad  Co.,   43  Conn.  434 184 

Dunn  v.  Winters,  2  Humph.  512 330 

Dunwlch  v.  Sterry,  1  Barn.  &  Adol.  831.. 

407,  408 

tDusy  v.  Helm,  59  Gal.  188 235 

Dwight  v.   Brewster,   1  Pick.   50,  11  Am. 

Dec.   133   519 

tDwinelle  v.  Railroad  Co.,  120  N.  Y.  117, 

24  N.  E.  319,  8  L.  R.  A.  224,  17  Am.  St. 

Rep.  611  209 

tDyckman  v.  Valiente,  42  N.  Y.  549....  515 
fDyeing  Co.  v.  Wanskuck,  13  R.  I.  611...  442 

tDyer  v.  Railroad  Co.,  71  N.  Y.  228 596 

Dyer  v.  Railway  Co.,  71  N.  Y.  228 594 

tDyett  v.  Hyman,  129  N.  Y.  351,  29  N.  E. 

201,   26  Am.    St.    Rep.    533 170 

Dygert  v.  Schenck,  23  Wend.  446,  35  Am. 

Dec.   575    454 

tEachus  v.  Trustees  of  Illinois  &  M.  Ca-  ' 

nal,  17  111.  534 680 

Eames  v.  Prentice,  8  Gush.  337 680 

Eames  v.  Worsted  Co.,  11  Mete.  (Mass.) 

570  472 

Earl  of  Lonsdale  v.  Nelson,  2  Barn.  & 

C.  302;  3  Dow.  &  R.  556 476 

Earl  v.  Van  Alstine,  8  Barb.  630 484 

Eastin  v.  Bank,  66  Cal.  123,  4  Pac.  1106, 

56  Am.  Rep.  77 286,  287 

tEast  Jersey  Water  Co.  v.  Bigelow,  60.  N. 

J.  Law,  204,  38  All.  632 459 

Eastman  v.  Ass'n,  65  N.  H.  176,  18  Atl. 

745,  5  L.  R.  A.  712,  23  Am.  St.  Rep.  29  522 
tEastman  v.  Mfg.  Co.,  44  N.  H.  156,  82 

Am.  Dec.  201, 459 

Easton  v.  Calendar,  11  Wend.  90 538 

tEast  River  Gaslight  Co.  v.  Donnelly,  93 

N.  Y.  557  538 

Eaton  v.  Hill,  50  N.  H.  235,  9  Am.  Rep. 

189  168 

tEaton  T.  Hill,  50  N.  H.  235,  9  Am.  Rep. 

189  164 

Eberly  v.  Ruff,  90  Pa.  259,  1  Am.  Lead. 

Cas.  (4th  Ed.)  210 286 

Eberly  v.  Rupp,  90  Pa.  259 283 

Eckert  Case,  43  N.  Y.  502,  3  Am.  Rep.  721  93 
tEconomy  Light  Co.  v.  Killer,  203  111.  518, 

68  N.  E.  72 170 

tEdger  v.  Burke,  96  Md.  715,  54  Atl.  986  255 
Edgington  v.  Fitzmaurice,  29  Ch.  Div.  459  635 


Page 
fEdgington    T.    Railroad    Co.,    116    Iowa, 

410,  90  N.  W.   95,  57   L.   R.   A.   561 577 

Edmonson  v.  Stevenson,  Bull.  N.  P.  8. .  339 
fEdmundson  v.  Railroad  Co.,  Ill  Pa.  316, 

2  Atl.   404 609 

Edwards  v.  Wooton,  12  Coke,  35 341 

tEgan  v.   Semrad,  113  Wis.  84,  88  N.  W. 

906    312 

tEggett  v.  Allen,  106  Wis.   633,  82  N.  W. 

556;    96    N.    W.    803 266,  269 

fEhrgott  v.   New  York,  96  N.   Y.  264,  48 

Am.   Rep.   622   80 

tEickhoff  v.    Fidelity   Co.,   74  Minn.    139, 

76    N.    W.    1030 287 

tEikhoff  v.   Gilbert,   124  Mich.   353,  83  N. 

W.  110,  51  L.  R.  A.  451 372 

tEller  v.  Koehler  (Ohio)  67  N.  E.  89 429 

Elliott   v.    Brown,    2   Wend.    497,    499,    20 

Am.    Dec.    644 195,  197 

fEllis  v.   Andrews,   56  N.   Y.   83,   15  Am. 

Rep.   379   655 

tEllis    v.    Buzzell,    60    Me.    209,    11    Am. 

Rep.    204    354 

tEllis  v.  Essau,  50  Wis.  138,  6  N.  W.  518, 

36   Am.    Rep.    830 180 

tEllis  v.  Gas.  Co.,  2  E.  &  B.  767 609 

tEllis  v.  Iron  Co.,  L.  R.  10  C.  P.  10....  397 
Elmer  v.  Fessenden,  151  Mass.  359,  24  N. 

E.    208,   5   L.    R.    A.    724 96,98,99 

tElmer   v.    Fessenden,    151   Mass.    359,    24 

N.  E.   208,  5  L.   R.  A.  724 327 

tElmergreen  v.  Horn,  115  Wis.  385,  91  N. 

W.    973    331 

Ely  v.   Davis,  111  N.  C.  24,  15  S.  E.  878.. 

283,  286 

tEly  y.  Ehle,  3  N.  Y.  507 493 

tEly  v.    Sup'rs,   36  N.   Y.   297 482 

tEmbrey  v.  Owen,  6  Exch.  353 43,  440 

Emerson  v.  Peteler,  35  Minn.  481,  29  N. 

W.  311,  59  Am.  Rep.  337 574 

Emery  v.    Hapgood,   7  Gray,   55,   66  Am. 

Dec.    459    27 

Emmens  v.   Pottle,  16  Q.   B.   D.   354 344 

tEndsley  v.  Johns,  120  111.  469,  12  N.  E. 

247,   60  Am.   Rep.  572 655 

tEngel  v.  Eureka  Club,  137  N.  Y.  100,  32 

N.  E.  1052,  33  Am.  St  Rep.  692 609 

Engel  v.  Smith,  82  Mich.  1,  46  N.  W.  21, 

21  Am.    St.    Rep.    549 560 

Engelhart  v.  Farrant  (1897)  1  Q.  B.  240..  98 
tEngelhart  v.  Farrant  (1897)  1  Q.  B.  240..  109 
tEnglish  v.  Canal  Co.,  66  N.  Y.  455,  23 

Am.   Rep.    69 209 

tErb  v.  Insurance  Co.,  112  Iowa,  357,  83 

N.  W.  1053  270 

tErber  v.  Dun  (C.  C.)  12  Fed.  526 368 

jErdman  v.  Mitchell,  207  Pa.  79,  56  Atl. 

327    300 

Erickson  v.   Fisher,  51   Minn.   300,   53  N. 

W.  638  665 

tErickson  v.   Fisher,   51  Minn.   300,  53  N. 

W.  638  666 

tErie  City  Iron  Works  v.  Barber,  106  Pa. 

125,  51  Am.   Rep.  508 642 

tErie  City  Pass.  Co.  v.  Schuster,  113  Pa. 

412,  6  Atl.  269,   57  Am.    Rep.   471 588 

tErskine  v.  Savage,  96  Me.  57,  51  Atl.  242  499 
tErtz  v.  Exchange  Co.,  79  Minn.  140,  81 

N.  W.  737,  48  L.  R.   A.  90,  79  Am.   St. 

Rep.    433    300 


CASES  CITED. 


XXIX 


Page 
Esmay  T.  Fanning,  9  Barb.  176 123 

tEsty  T.  Wilmot,  15  Gray,  168 402 

tEureka  Iron  Works  v.  Bresnahan,  66 

Mich.  489,  494,  33  N.  W.  834 511 

Evans  v.  Begleys,  2  Wend.  243 238 

Evans  v.  Collins,  5  Q.  B.  804,  820 632 

Evans  v.  Edmonds,  13  C.  B.  777 632,  634 

Evans  v.  Foster,  1  N.  H.  377 538 

Evans  v.  Harlow,  5  Q.  B.  624 387 

Evans  v.  Mason,  64  N.  H.  98,  5  Atl.  766..  521 
tEvans  T.  Masou,  64  N.  H.  98,  5  Atl.  766  499 
tEvans  v.  Miller,  58  Miss.  120,  38  Am. 

Rep.  313  141 

tEvening  Post  Co.  v.  Richardson  (Ky.) 

68  S.  W.  665 372 

Everett  v.  Henderson,  146  Mass.  89,  14 

N.  E.  932,  4  Am.  St.  Rep.  284 288 

tEverett  v.  Henderson,  146  Mass.  89,  92, 

14  N.  E.  932,  936,  4  Am.  St.  Rep.  284..  246 
t  Everett  v.  Railroad  Co.,  69  Iowa,  15,  28 

N.  W.  410,  58  Am.  Rep.  207 209 

Everroad  v.  Gabbert,  83  Ind.  489 172 

tEvey  v.  Railroad  Co.,  81  Fed.  294,  26  C. 

C.  A.  407,  3S  L.  R.  A.  387 678 

Exum  v.  Brister,  35  Miss.  391 184 

Eyre  v.  Dunsford,  1  East,  329 17 

tFabel  v.  Railroad  Co.,  30  Ind.  App.  268, 

65  N.  E.  929 684 

tFahn  v.  Reichardt,  8  Wis.  255 83 

tFairchild  v.  McMahon,  139  N.  Y.  290,  34 

N.  E.  779,  36  Am.  St.  Rep.  701 656 

tFalke  v.  Fletcher,  18  C.  B.  (N.  S.)  403..  507 
Fall  River  Iron-Works  Co.  v.  Railroad 

Co.,  5  Allen,  224 465 

tFanning  v.  Chace,  17  R.  I.  388,  22  Atl. 

275,  13  L.  R.  A.  134,  33  Am.  St.  Rep.  878  304 

tFanson  v.  Linsley,  20  Kan.  235 141 

tFargis  v.  Walton,  107  N.  Y.  398,  14  N.  E. 

303  407 

Faribault  v.  Sater,  13  Minn.  228  (Gil.  210)  665 

Farmer  T.  Darling,  4  Burrows,  1971 273 

Farrand  v.  Marshall,  21  Barb.  421 451 

tFarrar  v.  Churchill,  135  U.  S.  609,  10  Sup. 

Ct.  771,  34  L.  Ed.  246 674 

Farwell  v.  Railroad  Corp.,  4  Mete.  (Mass.) 

49,  38  Am.  Dec.  339,  3  Macq.  316 618 

tFay  v.  O'Neill,  36  N.  Y.  11 277 

Fay  v.  Whitman,  100  Mass.  76 447 

Felker  v.  Yarn  Co.,  148  Mass.  226,  19  N. 

E.  220 671 

Fent  v.  Railroad  Co.,  59  111.  349,  14  Am. 

Rep.  13 77 

tFent  v.  Railroad  Co.,  59  111.  349,  14  Am. 

Rep.  13 83 

Ferguson  v.  Bobo,  54  Miss.  121 168 

Ferguson  v.  Hubbell,  97  N.  Y.  507,  49  Am. 

Rep.  544 607,  608 

Fernald  v.  Chase,  37  Me.  292 517 

tFero  v.  Ruscoe,  4  N.  Y.  162,  165 353 

tFields  v.  Stokley,  99  Pa.  306,  44  Am.  Rep. 

109  477 

tFilbert  v.  HoS,  42  Pa.  97,  82  Am.  Dec. 

493  404 

tFilburn  v.  People's  Palace,  etc.,  Co.,  25 

Q.  B.  Div.  258 488 

Filer  v.  Railroad  Co.,  49  N.  Y.  47,  10  Am. 

Rep.  327 598 

tFller  v.  Smith,  96  Mich.  347,  55  N.  W. 

999,  35  Am.  St.  Rep.  603;    102  Mich.  98, 

60  N.  W.  297 255 


Page 

Fillo  v.  Jones,  2  Abb.  Dec.  121 452 

tFindlay   v.    McAllister,   113  U.   S.    104,  5 

Sup.  Ct.  401,  28  L.  Ed.  930 296 

tFink  v.  Des  Moines,  115  Iowa,  641,  89  N. 

W.  28 588 

tFirst  Nat.  Bank  T.  Deal,  55  Mich.  592,  22 

N.  W.  53 661 

tFirst  Nat.  Bank  v.  Railroad  Co.,  58  N. 

H.  203 508 

tFirst  Nat.  Bank  v.  Villegra,  92  Cal.  96, 

28  Pac.   97 51 

Fischer  v.   Raab,  81  N.  Y.  235 243 

Fish  v.  Dodge,  4  Denio,  311,  47  Am.  Dec. 

254  64 

tFish  T.  Dodge,  4  Denio,  311.  47  Am.  Dec. 

254   448 

Fish  v.  Ferris,  5  Duer,  49 166,  508 

Fish  Co.  v.  Dudley,  37  Conn.  136 424 

Fisher  v.  McGirr,  1  Gray,  1,  61  Am.  Dec. 

381    234 

tFisher  v.  McGirr,  1  Gray,  1,  45,  61  Am. 

Dec.   381 241 

Fisher  v.  Mellen,  103  Mass.  503 643 

tFisk  v.  Ewen,  46  N.  H.  173 516 

Fitts  v.  Hall,  9  N.  H.  441 168 

Fitzgerald  v.  Cavin.  110  Mass.  153 195 

tFitzgerald  v.  Cavin,  110  Mass.  153 136 

tFitzgerald  v.  Railroad  Co.,  29  Minn.  336, 

13  N.   W.   168,   43  Am.   Rep.  212 582 

tFitzgerald  v.  Redfield,  51  Barb.   484 322 

jFlaherty   v.    Moran,    81   Mich.    52,   45   N. 

W.  381,  8  L.  R.  A.  183,  21  Am.  St.  Rep. 

510 6 

tFlam  v.  Lee,  116  Iowa,  289,  90  N.  W.  70, 

93  Am.    St.    Rep.   242 269 

tFlannery  v.  Brewer,  66  Mich.  509,  33  N. 

W.  522 522 

tFleetwood  v.  Com.,  80  Ky.  1 258 

Fleming  v.  Railway  Co.,  4  Q.  B.  Div.  81  137 

tFletcher  v.  Bank,  37  N.  H.  369,  391 36 

Fletcher  v.  Fletcher,  7  N.  H.  452,  28  Am. 

Dec.    359 521 

tFletcher   v.    People,    52   111.    395 212 

Fletcher  v.  Rylands,  L.  R.  1  Exch.  265.. 

413,  561,  562,  564 
tFletcher  v.  Rylands,  L..  R.  1  Exch.  265..  565 

Floyd  &  Barker,  Case  of,  12  Coke,  23 538 

tFlynn  v.  Canton  Co.,  40  Md.  312,  17  Am. 

Rep.   603 32 

tFlynn  v.   Railroad  Co.,  142  N.  Y.  439,  37 

N.   E.  514 557 

Flynn  v.  Taylor,  127  N.  Y.  596,  28  N.  E. 

418,  14  L.  R.  A.  556 69 

tFlynn  v.  Taylor,  127  N.  Y.  596,  28  N.  E. 

418,  14  L.  R.  A.  556 467 

Fogg  v.  Pew,  10  Gray,  409,  71  Am.  Dec. 

662  671 

Foley  T.  Wyeth,  2  Allen,  131,  133,  79  Am. 

Dec.    771 47-49 

tFolger  v.  Washburn,  137  Mass.  60 274 

Foot  v.  Brown,  8  Johns.  64 320 

tFoot  v.   Pitt,  83  App.   Div.  76,  82  N.  Y. 

Supp.   464 336 

tForbell  v.   New  York,   164  N.   Y.  522,   58 

N.   E.   644,  51  L.   R.  A.  695.  79  Am.  St. 

Rep.   666 60 

tForbes  v.  Railroad  Co.,  133  Mass.  154 508 

Ford  v.  Monroe,  20  Wend.   210 624 

tFord  v.  Primrose,  5  Dowl.  &  R.  288 311 

Ford   v.   Railroad   Co.,   110  Mass.   261,   14 

Am.    Rep.   598 617 


XXX 


CASES  CITED. 


Page 
tFord  T.   Whiteman,   1  Pennewlll    (Del.) 

355,  45  Atl.  543 130 

Former  v.  Geldmecher,  13  Reporter,  790..  90 
Fortman  v.  Rottier,  8  Ohio  St.  548,  70  Am. 

Dec.    606 288 

Foshay  v.  Ferguson,  2  Denio,  617;    6  Hill, 

154 238,  261,  262,  271 

Foss  V.  Hildreth,   10  Allen,  76 351 

tFostblnder  v.  Svitak,  16  Neb.  499,  20  N. 

W.    866 200 

Foster  v.  Charles,  7  Bing.  105 630,  631 

fFoster  v.   Wiley,   27   Mich.   244,   15  Am. 

Rep.   185 239 

tFottler  v.  Moseley,  179  Mass.  295,  60  N. 

E.  788 674 

Fouldes  V.  Willougliby,  8  Mees.  &  W.  540  122 
tFouldes  v.  Willoughby,  8  Mees.  &  W.  540  493 
Foulkes  v.  Railroad  Co..  4  C.  P.  Div.  267; 

5  C.  P.  Div.  157 137 

Fowler  v.  Hollins,  L.  R.  7  Q.  B.  616;    L. 

R.  7  H.  L.  757 505 

Fowles  v.   Bowen,   30  N.   Y.  20 368 

tFowles  v.  Bowen,  30  N.  Y.  20 358 

tFox  v.  Smith  (R.  I.)  55  Atl.  698 269 

tFoy  v.  Barry.  87  App.  Div.  291,  84  N.  Y. 

Supp.  335 292 

tFrancis  v.  Schoellkopf,  53  N.  Y.  152....  467 
tFrank  v.  Herold,  63  N.  J.  Eq.  443,  52 

Atl.  152  117 

tFranklin  v.  Durgee,  71  N.  H.  186,  51  Atl. 

911,  58  I*.  R.  A.  112 434 

Fray  v.  Blackburn,  3  Best  &  S.  576 529 

Frazier  v.  Brown,  12  Ohio  St.  294 59 

tFrazier  T.  Turner,  76  Wis.  562,  45  N.  W. 

411   237 

Freeman  v.  Ass'n,  156  Mass.  351,  30  N.  E. 

1013,  17  L.  R.  A.  753 96,  98 

tFreeman  v.  Ass'n,  156  Mass.   351,  30  N. 

E.  1013,  17  L.  R.  A.  753 137 

Freeman  v.  Arkell,   2  Barn.   &  C.  494,  3 

Dowl.  &  R.  669 276 

tFrench  v.  Vining,  102  Mass.  132,  3  Am. 

Rep.   440 647 

tFriend  v.  Hamill,  34  Md.  298 538 

Frost  v.  Railroad  Co.,  64  N.  H.  220,  9  Atl. 

790,  10  Am.  St.  Rep.  396 574 

tFrost  v.   Railroad  Co.,   64  N.  H.   220,   9 

A«.   790,   10  Am.    St.   Rep.    396 577 

Fuller  y.  Chamberlain,   11  Mete.   (Mass.) 

503 172 

Fuller  v.  Fenner,  16  Barb.  333 326 

Fuller  v.  Jewett,  80  N.  Y.  46,  36  Am.  Rep. 

575    556 

tFurey  v.  Railroad  Co.,  67  N.  J.  Law,  270, 

51  Atl.  505 557 

tGallagher  v.  Stoddard,  47  Hun,  101 277 

tGalligan  v.  Mfg.  Co.,  143  Mass.  527,  10  N. 

E.  171 8 

tGalt  v.  Railroad  Co.,  157  111.  125,  132,  41 

N.  E.  643 400 

tGambrill  v.  Schooley,  93  Md.  48,  48  Atl. 

730,  52  L.  R.  A.  87,  86  Am.  St.  Rep.  414  344 
Gannon  v.  Hargadon,  10  Allen,  106,  87  Am. 

Dec.  625 432 

tGarby  v.  Bennett,  166  N.  Y.  392,  59  N. 

E.  1117 373 

tGardiner  Mfg.  Co.  T.  Heald,  5  Me.  381,  17 

Am.  Dec.  248 246 

Gardner  v.  Newburgh,  2  Johns.  Ch.  162,  7 

Am.  Dec.  526 40 


Page 
tGardner  T.  Self,  15  Mo.  480 352 

Garing  v.  Fraser,  76  Me.  37 295 

tGaring  v.  Fraser,  76  Me.  37 28,  280 

fGarland  v.   Aurin,   103  Tenn.   555,   53  S. 
W.  940,  48  L.  R.  A.  862,  76  Am.  St.  Rep. 

699    435 

Garnett  T.  Ferrand,  6  Barn.  &  C.  611 538 

tGarnier  v.  Squires,  62  Kan.  321,  62  Pac. 

1005   252 

tGarretson  v.  Becker,  52  111.  App.  255 553 

tGarvey  v.  Railroad  Co.,  159  N.  Y.  323,  54 

N.  E.  57,  70  Am.  St.  Rep.  550 474 

Gassett  v.  Gilbert,  6  Gray,  94 356 

tGates  v.  Bowers,  169  N.  Y.  14,  61  N.  E. 

993,  88  Am.  St.  Rep.  530 515 

Gates  v.  Lounsbury,  20  Johns.  427 197 

tGates  v.  Recorder  Co.,  155  N.  Y.  228,  49 

N.  E.  769 331 

tGauvreau  v.  Publishing  Co.,  62  Wis.  403, 

22  N.  W.  726 322 

Gavett  v.   Railroad  Co.,  16  Gray,  501,  77 

Am.  Dec.  422 569 

Gayford  v.  Nicholls,  9  Exch.  702 49 

tGeary  v.  Bennett,  53  Wis.  444,  10  N.  W. 

602  ; 304 

Geer  v.  Hovey,  1  Root,  179 168 

tGelzenleuchter    v.     Niemeyer,    64    Wis. 

316,  25  N.  W.  442,  54  Am.  Rep.  616... 237,  264 
General   Steam   Nav.    Co.   v.    Guillou,    11 

M.   &  W.  877 677 

tGenesee    Sav.    Bank    v.    Barge    Co.,    52 

Mich.    164,   17   N.    W.   790 669 

Genner  v.   Sparks,   2   Esp.   N.   P.    374;     1 

Salk.    79    221 

tGenung   v.    Baldwin,    77   App.    Div.    584, 

79   N.    Y.    Supp.    569 205 

Gerber  v.  Grabel,   16  111.   217 4 

tGermolus  v.   Sausser   (Minn.)   85  N.  W. 

946    200 

Getting  v.   Foss,  3  Car.   &  P.   160 368 

Gibbons  v.    Pepper,   4   Mod.   405 131 

Gibbs  v.  Chase,  10  Mass.  125,  128 492,  494 

Gibbs  v.   Dewey,   5   Cow.   503 302,   303 

Gibs   v.   Price,    Style,   231 215 

tGibson  v.    Leonard,   143   111.    182,   32   N. 

E.    182,    17    L.    R.    A.    588,    36    Am.    St. 

Rep.   376 560 

tGiflord  v.  Wiggins,  50  Minn.  401,  52  N. 

W.    904,   18   L.    R.   A.   356 235 

Gilbert    v.    Dickerson,    7    Wend.    449,    22 

Am.    Dec.    592 515 

tGilbert  v.    Finch,    173   N.    Y.    455,    66   N. 

E.    133,    61    L.    R.    A.    807,    93    Am.    St. 

Rep.    623    180 

Gilbert   v.    People,    1   Denlo,    41,    43   Am. 

Dec.   646   378 

Gildersleeve  v.  Hammond,  109  Mich.  431, 

67   N.    W.    519,   33   L.    R.    A.    46 50 

tGildersleeve  v.  Hammond,  109  Mich.  431, 

67  N.  W.  519,   521,   33  L.   R.   A.   46 50,  51 

Gillespie    v.    McGowan,    100    Pa.    144,    45 

Am.    Rep.   365 575 

tGillespie    v.    McGowan,    100    Pa.    144,    45 

Am.    Rep.   365 14 

tGillet  v.   Roberts,   57  N.   Y.   28 518 

Gillham   v.   Railroad  Co.,    49   111.    484,   95 

Am.    Dec.    627 432 

Gillis  v.  Railroad  Co.,  59  Pa.  129,  98  Am. 

Dec.   317    13 

tGilman  v.    Etaery,   54   Me.    460 493 

Oilman   v.   Noyes,   57   N.    H.    627 98 


CASES  CITED. 


XXXI 


Page 
Oilman  v.  Philadelphia,  3  Wall.  713.  732, 

18    L.    Ed.    96 474 

Gilmore    v.    Drlscoll,    122    Mass.    199,    23 

Am.    Rep.   312 51 

fGilmore    v.    Drlscoll,    122    Mass.    199,    23 

Am.    Rep.   312 50,   61 

Gllpatrlck  v.   Hunter,  24  Me.  18,  41  Am. 

Dec.   370   180 

Gilson  v.  Spear,  38  Vt.  311.  88  Am.  Dec. 

659    168 

Gizler  v.   Wltzel,   82   111.   322 195 

tGlamorgan  Coal  Co.  v.   Miners'  Federa- 
tion   (1903)    2    K.    B.    545 300 

tGlamorgan  Coal  Co.  v.   Miners'  Federa- 
tion   (1903)  2  K.   B.  545,  573,   576 116 

tGlass   Co.    v.    Wolcott,    2   Allen,    227,   79 

Am.    Dec.    787 141 

Glassner    v.    Wheaton,    2    E.    D.    Smith, 

352 123 

fGlencoe  Gravel  Co.  v.  Hudson  Bros.  Co., 

138   Mo.   439,   40   S.   W.    93,   36  L.   R.  A. 

804,   60  Am.   St.    Rep.   560 117 

Glidden  v.  Towle,  31  N.  H.  168 414,  415 

tGodeau    v.    Blood,    52    Vt.    251,    36    Am. 

Rep.   751   488 

Godsell    v.    Fleming,    59    Wis.    52,    17    N. 

W.    679    480 

Godson  v.   Home,  1  Brod.   &  B.  7 360 

tGoldberger    v.    Publishing    Co.    (C.    C.) 

42    Fed.    42 337 

Goldsborough  v.  Darst,  9  111.  App.  205...  176 
tGoldsmith's   Adm'r   v.    Joy,    61   Vt.    488, 

17   Atl.    1010,    4    L.    R.    A.    500,    15   Am. 

St.    Rep.    923 205 

Goldstein   v.    Foss,   6   Barn.   &   C.    158 368 

tGooch   v.    Stephenson,    13   Me.   371 36 

tGood    v.    Altoona   City,    162    Pa.    493,    29 

Atl.   741,   42  Am.   St.   Rep.   840 445 

tGood   v.    French,   115  Mass.    201 263 

Goodale  v.   Tuttle,   29  N.    Y.   459,   467.... 

59,   431,   433 
Goodlander  Mill  Co.  v.  Oil  Co.,  11  C.  C. 

A.   253,   63   Fed.   400,   405,   406,   27  L.   R. 

A.    583    97-99 

tGoodlander   Mill   Co.   v.    Oil   Co.,    11   C. 

C.  A.  253,  63  Fed.  400,  405,  27  L.  R.  A. 

583    91,  100 

Goodrich   v.    Woolcott,    3   Cow.    231 303 

Goodtitle   v.   Tombs,   3   Wils.   118 403 

Goodwin   v.    Griffis,   88  N.    Y.   629 139 

tGoodwin   v.    Home,    60   N.    H.    485 656 

Goodwin    v.    Wertheimer,    99    N.    Y.    149, 

1   N.    E.    404 622 

Goodwyn  v.  Cheveley,  4  H.  &  N.  631.. 413,  414 
Gordon   v.    Butler,    106   U.    S.    653,    26   L. 

Ed.   1166    653 

tGordon   v.    Butler,   105   U.   S.    553,   26   L. 

Ed.   1166    655 

Gordon   v.    Cummings,   152   Mass.    513,    25 

N.   E.   978,  9  L.   R.    A.   640,   23  Am.   St. 

Rep.    846    559 

tGordon  v.  Parmelee,   2  Allen,   212 648 

tGore  v.   Izer,   64  Neb.   843,  90  N.  W.  758  123 
Gorham  v.   Gross,   125  Mass.   232,  28  Am. 

Rep.    234    127 

tGorham  v.  Gross,  125  Mass.  232,  28  Am. 

Rep.    234    565 

tGormely    v.    Ass'n,    55    Wis.    350,    13    N. 

W.  242  656 

Gormley   v.    Sanlord,   62   111.    158 432 


Page 
Gorton  v.  Brown,  JT  111.  489,  498,  81  Am. 

Dec.  245   281,  282 

Gorton   v.    De  Angelis,   6   Wend.   418 262 

Goslin   v.    Wilcock,    2   Wils.    302,    307 275 

Gosling  v.    Morgan,   32   Pa.   273 382 

Gott  v.    Pulsifer,   122    Mass.    235,    23   Am. 

Rep.   322*  386,   387 

tGott  v.   Pulsifer,  122  Mass.   235,   23  Am. 

Rep.  322   373,   387 

fGoucher   v.    Jamieson,    124   Mich.    21,   82 

N.   W.   663 205 

Gould  v.  Duck  Co.,  13  Gray,  443 438 

Govett  v.    Radnidge,    3   East,    62 136 

tGower  v.  Emery,  18  Me.  79 178 

tGrace  v.   Mitchell,  31   Wis.   533,   11  Am. 

Rep.    613    '547 

fGrand  Trunk  R.  Co.  T.  Latham,  63  Me. 

177    178 

Grand   Val.    Irr.   Co.   v.   Pitzer,   14  Colo. 

App.   123,   59  Pac.   420 84 

tGrant  v.   Mill  Co.,  14  R.  I.  380 32 

Grant  v.   Moser,  6  Man.  &  G.  123 257 

Graves  v.   Dawson,  130  Mass.  78,  39  Am. 

Rep.    429    279 

tGraves    v.    Shattuck,    35   N.    H.    257,    69 

Am.   Dec.    536 477 

Gray    v.    Ayres,    7    Dana,    375,    32    Am. 

Dec.  107   481 

tGray  v.  Council  (Minn.)  97  N.  W.  663...  300 

tGray   v.    Durland,    51   N.   Y.    424 553 

tGray    v.    Pentland,    2    Serg.    &    R.    23; 

4  Serg.   &  R.   420 375 

Greason  v.   Keteltas,   17  N.   Y.   496 485 

tGreathouse  v.  Summerfleld,  25  111.  App. 

296    222 

tGreen  v.    Clarke,   12   N.   Y.   343 512 

Green  v.   Elgie,   5  Ad.   &  El.    (N.   S.)  114  236 

Green  v.  Goddard,  2  Salk.   641...* 202,  393 

Green  v.  Greenbank,  2  Marsh.  485 165,  168 

Green    v.    Railroad    Co.,    41    N.    Y.    294, 

2  Abb.  Dec.  277 624 

Green    v.    Sperry,    16    Vt.    390,    42    Am. 

Dec.    519    608 

Greene  v.  Jones,  1  Saund.  296,  note  1...  393 

Greenland    v.    Chaplin,    5    Exch.    243 106 

Greenleaf  v.  Francis,  18  Pick.  117,  122...    49 

tGreenleaf   v.    Francis,   18   Pick.    117 60 

Gregg  v.    Belting   Co.,   69   N.    H.   247,   46 

Atl.    26    176 

Gregory  v.   Duke  of  Brunswick,  6  M.   & 

G.    205.    953 299 

Gregory  v.  Hill,  8  Term  R.  299...  197,  199,  393 
tGrider    v.    Tally,    77    Ala.    422,    54    Am. 

Rep.    65    542 

tGridley  v.    Bloomington,   68   111.   47 178 

Griffith    v.     Holman,    23    Wash.    347,     63 

Pac.   239,   54  L.   R.  A.   178,   83  Am.    St. 

Rep.    821    480 

Griffith   v.    McCullum,    46   Barb.   561 478 

tGrifflths   v.    Hardenbergh,    41   N.    Y.   464  178 

Grinnell  v.  Wells,  7  Man.   &   G.   1033 552 

fGross  v.  Scheel  (Neb.)  93  N.  W.  418....  516 
tGrossbart  v.  Samuel,  65  N.  J    Law,  543. 

47   Atl.    601 181 

tGrotton  v.   Glidden,   84   Me.   589,  24  Atl. 

1008,   30  Am.    St.   Rep.   413 196 

Grove   v.   Brandenburg,   7   Blackf.    234....  625 

Grove   v.    Nevill,    1   Keb.    778 168 

tGrund  v.  Van  Vleck,  69  111.  478 184 

I  tGudger  v.   Railroad  Co.   (C.  C.)  21  Fed. 
I     81    170 


XXX11 


CASES  CITED. 


Page 
•fGuethler  r.  Altman,  26  Ind.  App.  687, 

60  N.  E.  355,  84  Am.  St.  Rep.  313 117 

Guille  v.  Swan,  19  Johns.  381,  382,  10 

Am.  Dec.  234 86,  90,  93,  491,  492,  494 

Gullleaume  v.  Rowe,  48  N.  Y.  Super. 

Ct.  169  237 

tGunsolus  v.  Lormer,  54  Wis.  630,  12  N. 

W.  62  400 

Gurney  v.  Tufta.  37  Me.  130,  68  Am. 

Dec.  777  240 

tGurney  v.  Tufts,  37  Me.  130,  68  Am. 

Dec.  777  241 

fGutzman  v.  Clancy,  114  Wis.  589,  90  N. 

W.  1081,  58  L.  R.  A.  744 196 

Gwynne  v.  Poole,  2  Lutw.  387 231,  631 

tHaase   v.    State,    63   N.    J.    Law,    34,    20 

Atl.  751  341 

tHadcock    v.    Osmer,    153    N.    Y.    604,    47 

N.    E.    923 642 

t  Haddock  v.   Naughton,   74   Hun,   390,   26 

N.   Y.   Supp.   455 352 

tHadley    v.    Importing   Co.,    13   Ohio    St. 

502,    82   Am.    Dec.    454 648 

tHager   v.    Danforth,    20   Barb.    16 412 

fHaggerty    v.    Wilber,    16    Johns.    287,    8 

Am.    Dec.   321 546 

Haile's    Curator    v.    Railway    Co.,    9    C. 

C.  A.  134,   60  Fed.  557,  23  L.  R.  A.  774    98 

Hair    v.    Little,    28    Ala.    236 172 

tHale  v.    Bank,   49   N.    Y.    627,   632 512 

Hale  v.    Philbrick,   42   Iowa,   81 665 

tHale    v.    Philbrick,    42    Iowa,    81 666 

tHalestrap  v.   Gregory   (1895)  1  Q.   B.  561  109 
tHaley  v.    Colcord,   59   N.   H.   7,   47   Am. 

Rep.    176    411 

Hall    v.    Butterfleld,    59    N.    H.    354,    47 

Am.   Rep.  209 168,   169 

tHall   v.    Eaton,    25   Vt.    458 20 

Hall   v.    Fisher,    20   Barb.    441 262 

Hall  v.  Smith,  2  Bing.  156;  7  Leg.  Int.  7 

154,  274 

Hall  v.  Snowhill,  14  N.  J.  Law,  8 398 

tHall  v.   Suydam,   6  Barb.   83 274 

tHallett  v.   Gordon,  128  Mich.  364,  87  N. 

W.    261     141 

Halley,   The,   L.    R.   2  Adm.    3,   L.   R.   2 

P.    C.    193    677 

tHalley,  The,  L.  R.  2  P.  C.  193,  204 678 

tHallock  v.  Dominy,  69  N.  Y.  23« 246 

Hallock  v.  Miller,  2  Barb.  630 387 

Halsey  v.  Woodruff,  9  Pick.  555 172 

tHamilton    v.    Arnold,    116   Mich.   684,    76 

-  N.    W.    138 203 

Hamilton  v.   Eno,  81  N.  Y.  116 359 

tHamilton  v.   Eno,  81  N.  Y.  116 372 

tHamilton  v.   Minneapolis  Co.,   78  Minn. 

3,  80  N.  W.  693,  79  Am.  St.  Rep.  350...  560 
tHamilton   v.    Railroad   Co.,   39   Kan.   56, 

18    Pac.    57 684 

tHamlin  v.  Fautl  (Wis.)  95  N.  W.  955 312 

Hammack  v.   White,   11  C.  B.,   N.   S.   588  564 
tHammill  v.  Railroad  Co.,  56  N.  J.  Law, 

370,   29   Atl.   151,   24  L.    R.    A.   531 78,  80 

Hammond  Co.  v.   Bussey,  20  Q.   B    Div. 

79,   89   99 

tHandlan  v.  McManus,  42  Mo.  App.  551..    51 
tHankins  v.   Railroad  Co.,  142  N.  Y.  416, 

37  N.  E.  466,  25  L.  R.  A.  396,  40  Am.  St. 

Rep.   616   614 

Hanmer  v.  Wilsey,  17  We«d.  91 123 


Page 

tHanna  v.  Singer,  97  Me.  128,  68  Atl.  991  383 
tHannabalson  v.   Sessions,   116  Iowa,  457, 

90  N.   W.  93,   93  Am.   St.   Rep.   250.. 200,  389 
tHanrahan  v.   Ass'n,   67   N.   J.    Law,   526, 

51  Atl.   480;   68  N.  J.   Law,  730,   54  Atl. 

1124     141 

tHanse  v.  Cowing,  1  Lans.  288 459 

tHanson  v.  Edgerly,  29  N.   H.  343 648 

Hardcastle  v.  Railway  Co.,  4  Hurl.  &  N. 

67    13,    14 

Harding  v.  Lamed,  4  Allen,  426 127 

Harding  v.   Weld,  128   Mass.   587,   591 127 

tHardy  v.  Brooklyn,  90  N.  Y.  435,  43  Am. 

Rep.    182    542 

tHarlan  v.   Railroad  Co.,  65  Mo.  22 67 

Harman   v.    Brotherson,    1   Denio,    537 244 

Harman   v.   Tappenden,    1   East,   555 38 

Harmon  v.   Harmon,   61  Me.   222 389 

tHarrill   v.    Railroad   Co.,   132   N.   C.    655, 

44    S.    E.    109 683 

tHarrington   v.    Douglas,    181    Mass.    178, 

63    N.     E.    334 674 

tHarrington  v.   McCarthy,  169   Mass.   492, 

48  N.  E.  278,  61  Am.  St.   Rep.   298 43 

tHarris   v.    Hurley,   8   N.    H.   216 316 

Harris  v.  Butler,  2  Mees.   &  W.  539 552 

Harris  v.    Saunders,   2  Strob.   Eq.   370 123 

Harris  v.  Thompson,  13  C.  B.  333 368 

tHarrisburg,    The,   119   U.    S.   199,   7   Sup. 

Ct.   140,  30  L.  Ed.  358 626 

Harrison   v.   Bush,   5  El.    &  Bl.   344 

356,  359,  368 

tHarrison   v.   Clark,   4  Hun,    685 234 

tHarrison   v.    Duke   of   Rutland    (1893)    1 

Q.    B.    142 390 

tHarrison    v.    Manship,    120    Ind.    43,    22 

N.    E.    87    3S-2 

Harrison   v.    Railway   Co.,   3   Hurl.    &   C. 

231,    33   Law   J.    Exch.    266 106 

tHarrison  v.  Railroad  Co.,  31  N.  J.  Law, 

293    621' 

Harrower  v.   Ritson,  37  Barb.   301 4Sn 

Hart  T.    Aldridge,    Cowp.    54 112 

tHart   v.    Allen,    2   Watts    (Pa.)    114 67 

tHart   v.    Cole,    156    Mass.    475,    31   N.    E. 

644,  16  L.   R.  A.   557 657 

tHarter   v.    Morris,    18    Ohio     St.    493 67 

Hartfleld   v.    Roper,    21    Wend.    615,    620, 

34   Am.    Dec.    273 164,   579,   580,   583-5S5 

tHartford  v.  Brady,  114  Mass.  466,  19  Am. 

Rep.     377     414 

Hartley  v.  Herring,  8  Term    R.  130 387 

Hartshorn  v.  South  Reading,  3  Allen,  501  465 

Hartzall   v.   Sill,   12   Pa.    248 439 

Harvard  College  v.  Stearns,  15  Gray,  1..  463 
Haskell  v.    New  Bedford,   108  Mass.   208, 

215 ; 472 

Hastings  v.   Lusk,  22  Wend.  410,  34  Am. 

Dec.    330    377,378 

tHastings    v.    Lusk,    22    Wend.    410,    417, 

34    Am.    Dec.    330 379 

Hastings   v.    Palmer,    20   Wend.    226 324 

Hastings    v.    Stetson,    126    Mass.    329,    38 

Am.     Rep.    683    98 

tHastings    v.    Stetson,    126    Mass.    329,    30 

Am.    Rep.     683 327 

Hatch    v.    Cohen,    84    N.    C.    602,    37   Am. 

Rep.    630    279 

Hatch    v.    Railroad,    28   Vt.    142,    147 470 

tHathorn  v.  Congress  Spring  Co.,  44  Hun, 

608    353 


CASES   CITED. 


XXX111 


Page 
fHauk  T.  Brownell,  120  111.  161,  11  N.  E. 

416  656 

tHaverly  v.  Railroad  Co.,  135  Pa.  50,  58, 

19  Atl.  1013,  20  Am.  St.  Rep.  848 79 

Hawkes  v.  Hawkey,  8  East,  431 381 

Hawkins  v.  Hoffman,  6  Hill,  588,  41  Am. 

Dec.  768  501 

Hay  v.  Cohoes  Co.,  3  Barb.  42;  2  N.  Y. 

159,  162,  51  Am.   Dec.   279 48,  49,  55,  451 

tHay  v.  Cohoes  Co..  2  N.  Y.  159,  51  Am. 

Dec.  279  118 

Hay  v.  La  Neve  [2  Shaw,  395] 593 

Haycraft  v.  Creasy,  2  East,  92,  104 126,  629 

tHayden  v.  Dutcher,  31  N.  J.  Eq.  217...  6 

tHayden  v.  Mfg.  Co.,  29  Conn.  548 614 

fHayes  v.  Ball,  72  N.  Y.  418 312 

Hayes  v.  Hyde  Park,  153  Mass.  514,  27 

N.  E.  522,  12  L.  R.  A.  249 96 

tHayes  v.  Railroad  Co.,  Ill  U.  S.  239, 

240,  4  Sup.  Ct.  369,  28  L.  Ed.  410 32 

tHayes  v.  Waldron,  44  N.  H.  580,  84  Am. 

Dec.  105  442 

Hays  v.  Hays,  19  La.  351 432 

vHays  v.  Miller,  70  N.  Y.  112 83 

tHays  v.  People,  1  Hill,  351 189 

fHaythorn  v.  Rushforth,  19  N.  J.  Law, 

160,  38  Am.   Dec.   540 493 

tHazard   Powder  Co.   v.   Volger,  7  C.   C. 

A.  136,  58  Fed.  153 452 

tHazzard  v.  Flury,  120  N.  Y.  223,  24  N. 

E.  194  270,272,274 

tHealey  v.  New  Haven,  49  Conn.  394 35 

fHealth  Dept.  v.  Dassori,  21  App.  Dly. 

348,  47  N.   Y.   Supp.  641;  159  N.  Y.  245, 

54  N.  E.  13 482 

tHeater  v.  Penrod  (Neb.)  89  N.  W.  762..  181 

Heath  v.  Randall,  4  Cush.  195 405 

Heaven  v.  Pender,  11  Q.  B.  D.  503 163 

tHeaven  v.  Pender,  16  Q.  B.  D.  503. ...557 
tHeckle  v.  Lurvey,  101  Mass.  344,  3  Am. 

Rep.  366  518 

tHedges  v.  Tagg,  L.  R.  7  Ex.  283 553 

tHedin  v.  Medical  Inst.,  62  Minn.  146, 

64  N.  W.   158,   35  L.   R.  A.  417,  54  Am. 

St.  Rep.  628  655 

Hedley  v.  Barlow,  4  F.  &  F.  224,  231....  70 
Heeg  v.  Licht,  80  N.  Y.  579,  36  Am.  Rep. 

654  56 

Heenan  v.  Dewar,  18  Grant,  Ch.  438....  424 
Heeney  v.  Sprague,  11  R.  I.  456,  23  Am. 

Rep.  502  80 

tHeeney  v.  Sprague,  11  R.  L  456,  23  Am. 

Rep.  502  32 

tHeermance  v.  James,  47  Barb.  120 550 

Heermance  v.  Vernoy,  6  Johns.  5 393 

tHeiser  v.  Loomis,  47  Mich.  16,  10  N. 

W.  60  206 

tHemlnway  Y.  Hemlnway,  58  Conn.  443, 

19  Atl.  766 203 

tHemmer  v.  Cooper,  8  Allen,  334 656 

tHemsworth  v.  Gushing,  115  Mich.  92,  72 

N.  W.  1108  50 

Henderson  v.  Broomhead,  4  Hurl.  &  N. 

569  26 

Henderson  v.  Henshall,  4  C.  C.  A.  357, 

54  Fed.  320  665 

tHenderson  v.  Henshall,  54  Fed.  320,  4 

C.  C.  A.  357 666 

tHendle  T.  Geller  (Del.  Super.)  50  Atl. 

632  205 

•  Hendrix  v.  State,  50  Ala.  148 203 

CHASE  (2o  ED.) — c 


Page 
tHenline  T.  Reese,  54  Ohio  St.  699,  44 

N.  E.  269,  56  Am.  St.  Rep.  736 647 

fHenmens  v.  Nelson,  138  N.  Y.  517,  34 

N.  E.  342,  20  L.  R.  A.  440 382 

tHennessy  v.  Carmony,  50  N.  J.  Eq.  616, 

25  Atl.  374  429 

tHennessy  v.  Connolly,  13  Hun,  173 258 

tHenniker  v.  Railroad,  29  N.  H.  146....  36 

Henn's  Case,  W.  Jones,  296 409 

tHenry  v.  Dennis,  93  Ind.  452,  47  Am. 

Rep.  378;  95  Me.  24,  49  Atl.  58,  85  Am. 

St.  Rep.  365  109,  669 

Kenwood  v.  Harrison,  L.  R.  7  C.  P.  606  70 
Herbert  &  Stroud's  Case,  Cro.  Car.  210..  216 
tHeritage  v.  Dodge,  64  N.  H.  297,  9  Atl. 

722  212 

Hermance  v.  James,  32  How.  Prac.  142..  23 
Hermann  v.  Railroad  Co.,  11  La.  Ann.  6..  624 

Herr  v.  Barber,  2  Mackey,  545 176 

Herrick  v.  Railroad  Co.,  31  Minn.  11, 

16  N.  W.  413,  47  Am.  Rep.  771 683 

tHerrick  v.  Railroad  Co.,  31  Minn.  11, 

16  N.  W.  413,  47  Am.  Rep.  771.... 678,  684 

Herring  v.  Finch,  2  Lev.  250 38 

tHerrlnger  v.  Ingberg  (Minn.)  97  N.  W. 

460 372 

Herrington  v.  Lansingburgh,  110  N.  Y. 

145,  17  N.  E.  728,  6  Am.  St.  Rep.  348..  607 

tHerzog  v.  Graham,  9  Lea,  152 264 

Hetrich  v.  Deachler,  6  Pa.  32 439 

tHewelett  v.  George,  68  Miss.  703,  9 

South.  885,  13  L.  R.  A.  682 212 

tHewit  v.  Mason,  24  How.  Prac.  366 313 

tHewitt  v.  Newburger,  141  N.  Y.  538,  36 

N.  E.  593 237 

tHewitt  T.  Warren,  10  Hun,  560 169 

tHeyne  v.  Blair,  62  N.  Y.  19 270 

tHeywood  v.  Tillson,  75  Me.  225,  46  Am. 

Rep.  373  20,  71 

Hibbard  v.  Railroad  Co.,  15  N.  Y.  455....  223 
tHibbard  v.  Railroad  Co.,  15  N.  Y.  455..  209 
Hibbs  v.  Wilkinson,  1  F.  &  F.  608,  610..  70 

Hickes'  Case,  Poph.  139,  Hob.  215 341 

Hickey  v.  Railroad  Co.,  14  Allen,  429....  569 
tHickey  v.  Railroad  Co.,  96  Mich.  498, 

65  N.   W.  989,  21  L.   R.  A.  729,  35  Am. 

St.  Rep.  621 477 

tHlckman  v.  Maisey  (1900)  1  Q.  B.  752...  390 
tHicks  v.  Faulkner,  8  Q.  B.  D.  167;  46 

L.  T.  (N.  S.)  12 269 

Hide  v.  Thornborough,  2  Car.  &  K.  250, 

255  49 

Higgins  v.  Dewey,  107  Mass.  494,  9  Am. 

Rep.  63  77 

tHiggins  v.  Dewey,  107  Mass.  494,  9  Am. 

Rep.  63  83 

tHiggins  v.  Railroad  Co.,  155  Mass.  176, 

180,    29    N.    E.    534,    31    Am.    St.    Rep. 

544  678,  684 

Higgins  v.  Turnpike  Co.,  46  N.  Y.  23, 

7  Am.  Rep.  293 602 

Hipginson  v.  York,  5  Mass.  341 49] 

tHildebrand  v.  McCrum,  101  Ind.  61 220 

Hill  v.  Balls,  2  Hurl.  &  N.  299 647 

Hill  v.  Goodchild,  5  Burrows,  2790 172 

Hill  v.  New  River  Co.,  9  Best.  &  S.  303  105 

Hill  v.  Sayles,  12  Cush.  454 442 

Hill  v.  Winsor,  118  Mass.  251 9S 

tHill  v.  Winsor,  118  Mass.  251 80 

Hillhouse  T.  Dunning,  6  Conn.  391 330 


XXXIV 


CASES   CITED. 


Page 
Milliard  v.  Goold,  34  N.  H.  230,  66  Am. 

Dec.  765  208 

Billiard  v.  Richardson,  3  Gray,  349,  63 

Am.  Dec.  743 49 

fHilliard  v.  Richardson,  3  Gray,  349,  63 

Am.  Dec.  743 609 

tHilsden  v.  Mercer,  Cro.  Jac.  677 352 

Hinckley  v.  Emerson,  4  Cow.  351,  15  Am. 

Dec.  383  395 

tHinckley  v.  Krug  (Cal.)  34  Pac.  118...  67 
tHindman  v.  Bank,  112  Fed.  931,  50  C. 

C.  A.  623,  57  L.  R.  A.  108 644 

Hingham  v.  Sprague,  15  Pick.  102 399 

tHingston  v.  Smith  Co.,  114  Fed.  294, 

52  C.  C.  A.  206 661 

tHinkle  v.  State,  127  Ind.  490,  26  N.  E. 

777  212 

Hiort  v.  Bott,  L.  R.  9  Ex.  86  [A.  D.  1874]  122 
Hoadley  v.  Transportation  Co.,  115  Mass. 

304,  15  Am.  Rep.  106 98,  99 

Hoag  v.  Railroad,  85  Pa.  293,  27  Am. 

Rep.  653  98 

tHoag  v.  Railroad  Co.,  Ill  N.  Y.  199, 

18  N.  E.   648;    85  Pa.   293,  27  Am.  Rep. 

653  83,  596 

Hoar  v.  Wood,  3  Mete.  (Mass.)  193 26 

Hobbs  v.  Brandscomb,  3  Camp.  420 250 

tHodder  v.  Williams  (1895)  2  Q.  B.  663..  646 
Hodgeden  v.  Hubbard,  18  Vt.  504,  46  Am. 

Dec.  167  202 

tHoepper  v.  Hotel  Co.,  142  Mo.  378,  44 

S.  W.  257 80 

tHoffman  v.  King,  160  N.  Y.  618,  66 

N.    E.    401,    46    L.    R.    A.    672,    73    Am. 

St.  Rep.  715 79 

tHogg  v.  Ward,  3  H.  &  N.  417 255 

tHolbrook  v.  Connor,  60  Me.  578,  11  Am. 

Rep.  212  654,  662 

tHolden  v.  Railroad  Co.,  129  Mass.  268, 

37  Am.  Rep.  343 623 

+Holdom  v.  Ancient  Order  of  United 

Workmen,    159  -111.    619,    43    N.    E.    772, 

31  L.  R.  A.  67,  50  Am.  St.  Rep.  183...  126 
Hole  v.  Barlow,  4  C.  B.  (N.  S.)  336....  420 
Holladay  v.  Marsh,  3  Wend.  147,  20  Am. 

Dec.  678  415 

1  Holland  House  Co.  v.  Baird,  169  N.  Y. 

136,  62  N.  E.  149 67 

tHollenbeck  v.  Johnson,  79  Hun,  499, 

29  N.  Y.  Supp.  945 130 

Holley  v.  Mix,  3  Wend.  350,  20  Am.  Dec. 

702  251 

Hollina  v.  Fowler,  L.  R.  7  H.  L..  757, 

766  122,  521 

fHollins  v.  Fowler,  L.  R.  7  H.  L.  757.. 123,  508 
tHollis  v.  Meux,  69  Cal.  625,  11  Pac.  248, 

58  Am.  Rep.  574 379 

Holman  v.  Townsend,  13  Mete.  (Mass.) 

297,  299  465 

Holmes  v.  Clarke,  6  H.  &  N.  937 617 

tHolmes  v.  Corthell,  80  Me.  31,  12  Atl. 

730  467 

tHolmes  Y.  Jones,  147  N.  Y.  59,  41  N. 

E.  409,  49  Am.  St.  Rep.  646 340 

tHolmes  v.  Mather,  L.  R.  10  Ex.  261...  118 
Holmes  v.  Railroad  Co.,  L.  R.  76  Exch. 

123  556 

Holmes  v.  Seely,  19  Wend.  507 398,  409 

Holmes  v.  Wakefleld,  12  Allen,  580,  90 

Am.    Dec.    171 605 


Page 
Holmes   r.   Worthlngton,    2  Fos.    ft   Fin. 

533     617 

tHolsman    v.    Bleaching    Co.,    14    N.    J. 

Eq.   335   442 

Holwood  v.    Hopkins,   Cro.   Ellz.   787.....  Ill 

Homer  v.    Battyn,    Buller's   N.    P.   62 221 

Homer  v.   Thwing,   3   Pick.   492 

164,  166,  168,  169,  508 
Honesberger    v.    Railroad    Co.,    33    How. 

195    580 

tHope   v.    Coal   Co.,    3   App.    Div.    70,   38 

N.   Y.   Supp.   1040 82 

tHopkins   v.    Crowe,    7   C.    &   P.    373 252 

tHopkins   v.    Dickson,    59   N.    H.    235 203 

tHopkins   v.    Stave    Co.,    83   Fed.    912,    28 

C.    C.    A.    99 300 

tHoran  v.   Byrnes,   70  N.   H.   531,  49  Atl. 

569    « 

Hornketh  v.    Barr,   8   Serg.    &   R.   36,    11 

Am.    Dec.    568 553 

tHorstick    v.     Dunkle,    145    Pa.     220,    23 

Atl.    378,   27  Am.    St.    Rep.   685 14 

tHotchkin  v.  Bank,  127  N.   Y.  329,  27  N. 

E.   1050   656 

tHotchkiss   v.   Oliphant,   2  Hill,    510 310 

Hotchkiss    v.    Porter,    30   Conn.    414 357 

IHouck  Y.    Wachter,    34   Md.    265,   6  Am. 

Rep.    332    69 

tHough    v.    Railroad   Co.,   100   U.    S.   213, 

25    L.    Ed.    612 614 

Hounsell    v.    Smyth,    7    C.    B.     (N.    S.) 

731   13,   557 

tHouseholder  v.   Kansas  City,   83  Mo.  4*S    35 

Hover  v.  Barkhoof,  44  N.  Y.  113 30,  540 

tHoward   v.   Clarke,   L.    R.   20   Q.    B.    D. 

558    252 

Howard  v.   Manderfield,   31   Minn.   337,  17 

N.    W.    946 546 

tHoward    v.    Traction    Co.,    195    Pa.    391, 

45  Atl.   1076 170 

tHowe  v.   Newmarch,   12  Allen,   49 606 

tHowe  v.  Railroad  Co.,   37  N.  Y.  297....  178 

tHowe  v.   Shaw,  56  Me.   291 170 

Howe  v.   Wilson,  1  Denio,   181 680 

Howell  v.   Jackson,   6  Car.   &  P.   723 258 

Hoy    v.    Sterrett,    2    Watts,    327,    27    Am. 

Dec.    313    439 

Hoyt    v.    Hudson,    27    Wis.    656,    9    Am. 

Rep.    473    432 

tHubbard  v.  Mace,  17  Johns.  127 412 

tHubbuck  v.  Wilkinson  (1899)  1  Q.  B.  86  388 
tHuber   v.    Merkel,    117    Wis.    355,    94   N. 

W.   354,   356,   62  L.    R.   A.   589 60 

Hubgh  v.   Railroad  Co.,  6  La.  Ann.   495, 

54  Am.  Dec.  565 624 

Huckenstine's  Appeal,  70  Pa.  102,  10  Am. 

Rep.   669   421 

tHuckestein    v.    Insurance    Co.,    205    Pa. 

27,   54  Atl.   461 270 

tHuddleston   v.    West    Bellevue,    111   Pa, 

110,   2  Atl.    200 172 

tHudkins  v.    Haskins,   22  W.       u   645 553 

tHuff   v.    Ames,    16   Neb.    139,    19    N.    W. 

623,   49   Am.    Rep.   716 588 

Huggett   v.    Montgomery    (Day's    Ed.)    2 

Bos.  &  P.   (N.   R.)  446 129 

Hughes  v.    Macfle,    2  Hurl.   &  C.   744,   33 

Law  J.    Exch.   177 104 

tHull  v.   Bartlett,   49  Conn.   64 214 

Hull  v.  Pickersgill,  1  Brod.  &  B.  282....  183 


CASES  CITED. 


XXXV 


Page 

Hume  v.  Oldacre,  1  Starkle,  351 172 

Humphrey  v.  Douglass,  10  Vt.  71,  33 

Am.  Dec.  177 164 

Humphreys  v.  Mears,  1  Man.  &  R.  187  154 

Humphries  v.  Brogden,  12  Q.  B.  739 49 

Humphries  v.  Parker,  52  Me.  502 266 

Hunt  v.  Bennett,  19  N.  Y.  173 332 

Hunt  v.  Dowman,  Cro.  Jac.  473,  2  Rolle, 

21  38 

Hunt  v.  Peake,  H.  R.  V.  Johns,  705....  48 

tHunt  v.  Rich,  38  Me.  195 390 

Hunter  v.  State,  40  N.  J.  Law,  495 507 

Huntington  v.  Attrill,  146  U.  S.  657,  669, 

670,  13  Sup.  Ct.  224,  36  L.  Ed.  1123 679 

fHuntington  v.  Attrill,  146  U.  S.  657,  670, 

13  Sup.  Ct.  224,  228,  36  L.  Ed.  1123..  678,  683 
Huntington  v.  Gault,  81  Mich.  155,  45 

N.  W.  970 254 

tHuot  v.  Wise,  27  Minn.  68,  6  N.  W.  425  296 

Kurd  v.  Railroad  Co.,  25  Vt.  122 415 

Hurdman  v.  Railroad  Co.,  3  C.  P.  Div. 

168  54 

fHurwitz  v.  Hurwitz,  10  Misc.  Rep.  353, 

31  N.  Y.  Supp.  25 20 

tHuset  v.  Machine  Co.,  57  C.  C.  A.  237, 

120  Fed.  865,  61  L.  R.  A.  303 156,  162 

Hutoheson  v.  Peck,  5  Johns.  196 23 

Hutchins  v.  Brackett,  22  N.  H.  252,  53 

Am.  Dec.  248 643 

Hutchins  v.  Hutchins,  7  Hill,  104 295 

tHutchins  v.  Hutchins,  7  Hill,  104 20 

Hutchins  v.  Smith,  63  Barb.  251 421 

Hutchinson  v.  Gaslight  Co.,  122  Mass. 

219  9» 

Hutchinson  v.  Railway  Co.,  6  Exch. 

343  618,  619 

Hutson  v.  Mayor,  etc.,  9  N.  Y.  169,  59 

Am.  Dec.  526 539 

Hyatt  v.  Adams,  16  Mich.  180 624 

Hyatt  v.  Wood,  4  Johns.  150.  4  Am. 

Dec.  258  198 

Hyde  v.  Cooper,  26  Vt.  552 183 

fHyde  v.  Greuch,  62  Md.  577 289 

tHyde  v.  Noble,  13  N.  H.  494,  38  Am. 

Dec.  508  617 

Hyde  v.  Stone,  9  Cow.  230,  18  Am.  Dec. 

501  515 

tHyde  Park  Light  Co.  v.  Porter,  167 

111.  276,  47  N.  E.  206 459 

fHydes  Ferry  Turnpike  Co.  v.  Yates,  108 

Tenn.  428,  67  S.  W.  69 596 

Hydraulic  Works  Co.  v.  Orr,  83  Pa. 

332   13,  14 

Ihl  v.  Railroad  Co.,  47  N.  Y.  317,  7  Am. 

Rep.  450  583,  684 

Illidge    v.    Goodwin,    5    Car.    &    P.    190, 

192   103,  104,   161 

flllinois    Cent.     R.     Co.    v.     Benton,    69 

111.    174 67 

Ilott  Y.  Wilkes,  3  Barn.  &  Aid.  304,  308... 

103,  105,  487 

Ince  v.  Ferry  Co.,  106  Mass.  149 568 

tlndermaur  v.  Dames,  L.  R.  1  C.  P.  274, 

2  C.   P.  311 657 

tlndustrial,  etc.,  Trust  v.  Tod,  170  N.  Y. 

233,  245,  63  N.   E.   285 499 

tlngwersen  v.  Rankin,  47  N.  J.  Law,  18, 

54  Am.   Rep.   109 463 

tlnland  &  S.  B.  Coasting  Co.  v.  Tolson, 

139  U.  S.  551,  71  Sup.  Ct.  653,  35  I*  Ed. 

270   671 


Page 

Insurance  Co.  r.  Baldwin,  37  N.  Y.  648..  539 
Insurance  Co.  v.  Bosher,  39  Me.  253,  63 

Am.  Dec,  618 625 

Insurance  Co.  v.  Frost,  37  111.  333 624 

Insurance  Co.  v.  Tweed,  7  Wall.  44,  19  L. 

Ed.  65 96 

Ireland  v.  Higgins,  Cro.  Eliz.  125 489 

tlrlbeck  v.  Bierl  (Iowa)  67  N.  W.  400..  205 
tlrvine  v.  Gibson  (Ky.)  77  S.  W.  1106....  126 
tlrvine  v.  Smith,  204  Pa.  58,  53  Atl.  510...  50 
fives  v.  Welden,  114  Iowa,  476,  87  N.  W. 

408,  54  L,  R.  A.  854,  89  Am.  St.  Rep.  379  162 

Jacaway  v.  Dula,  7  Yerg.  82,  27  Am.  Dec. 
492     204 

tJackson  v.  Adams,  2  Bing.  N.  C.  402,  2 

Scott,  599 311 

tJackson  v.  Knowlton,  173  Mass.  94,  53  N. 

E.  134 255 

Jackson  v.  Railroad  Co.,  47  N.  Y.  274,  7 

Am.  Rep.  448 605 

tJackson  v.  Stanfield,  137  Ind.  592,  36  N. 

E.  345,  37  N.  E.  14,  23  L.  R.  A.  588 296 

tJacobi  v.  State,  133  Ala.  1,  32  South.  158  193 
tJacobsen  v.  Siddal,  12  Or.  280,  7  Pac.  108, 

53  Am.  Rep.  360 550 

tJacques  v.  Mfg.  Co.,  66  N.  H.  482,  22  Atl. 

552,  13  L.  R.  A.  824 614 

tJacques  v.  Parks,  96  Me.  268,  52  Atl.  763  241 
tJaggar  v.  Winslow,  30  Minn.  263,  15  N. 

W.  242 656 

tJanouch  v.  Pence  (Neb.)  93  N.  W.  217...  141 

J'Anson  v.  Stuart,  1  Term  R.  748 329 

tJardine  v.  Cornell,  50  N.  J.  Law,  485, 

14  Atl.  590 209 

tJarman  v.  Rea,  137  Cal.  339,  70  Pac.  216  372 

Jarrett  v.  Kennedy,  6  C.  B.  319 671 

Jay  v.  Whitfield,  4  Bing.  644 105 

Jeffrey  v.  Bigelow,  13  Wend.  518,  28  Am. 

Dec.  476 646 

tJeffries  v.  Railroad  Co.,  5  El.  &  Bl.  802  511 

Jendwine  v.  Slade,  2  Esp.  572 653 

Jenings  v.  Florence,  2  C.  B.  (N.  S.)  467. .  288 

Jenkins  v.  Turner,  1  Ld.  Raym.  109 395 

Jennings  v.  Randall,  8  Term,  335 164,  168 

Jennings  v.  Rundall,  8  T.  R.  335 165,  168 

tJennings  v.  Thompson,  54  N.  J.  Law,  55, 

22  Atl.  1008 647 

tJenoure  v.  Delmege  (1891)  App.  Gas.  73  375 
Jerome  v.  Ross,  7  John.  Ch.  315,  11  Am. 

Dec.  484 40 

tJerome  v.  Smith,  48  Vt.  230,  21  Am.  Rep. 

125  209 

tJersey  City  Printing  Co.  v.  Cassidy,  63 

N.  J.  Eq.  759,  53  Atl.  230 300 

Jervis  v.  Jolliffe,  6  J.  R.  9 619 

Jesser  v.  Gifford,  4  Burrows,  2141 398 

tJessup  v.  Bamford  Bros.  Co.,  66  N.  J. 

Law,  641,  51  Atl.  147,  58  L.  R.  A.  329,  88 

Am.  St.  Rep.  502 434 

Jetter  v.  Railroad  Co.,  2  Abb.  Dec.  458. .  30 
tJewell  v.  Colby,  66  N.  H.  399,  24  Atl.  902  126 
tJewell  v.  Mahood,  44  N.  H.  474,  84  Am. 

Dec.  90 401 

Jewell  v.  Railroad  Co.,  55  N.  H.  84 134 

Jewett  v.  Locke,  6  Gray,  233 277 

tJewett  V.  Whitney,  43  Me.  242 44 

Joannes  v.  Burt,  6  Allen,  236,  83  Am.  Dec. 

625  333 

Johnson  T.  Couillard,  4  Allen  (Mass.)  446  521 
Johnson  T.  King,  64  Tex.  228 286 


xxxvi 


CASES  CITED. 


Page 
iJohnson  T.  Lewis,  13  Conn.  303,  33  Am. 

Dec.  405 459 

tJohnson  v.  McKee,  27  Mich.  471 205 

tJobnson  v.  Martin,  87  Minn.  370,  92  N. 

W.  221,  59  L.  R.  A.  733,  94  Am.  St.  Rep. 

706 123 

tJohnson  T.  Morton,  94  Mich.  1,  53  N.  W. 

816  246 

Johnson  v.  Patterson,  14  Conn.  1,  35  Am. 

Dec.  96 14 

Johnson  v.  Perry,  56  Vt.  703,  48  Am.  Rep. 

826  202 

tJohnson  v.  Perry,  56  Vt.  703,  48  Am.  Rep. 

826  203 

Johnson  v.  Pie,  1  Lev.  169,  1  Sid.  258,  1 

Keb.  905 168 

tJohnson  v.  Railroad  Co.,  91  Iowa,  248, 

59  N.  W.  66 678 

Johnson  v.  Robertson,  8  Port.  486 320 

tJohnson  v.  Skillman,  29  Minn.  95,  12  N. 

W.  149,  43  Am.  Rep.  192 407 

tJohnson  v.  State,  35  Ala.  363 189 

tJohnston  v.  Disbrow,  47  Mich.  59,  10  N. 

W.  79 550 

Johnstone  v.  Sutton,  1  Term  R.  510,  544..  264 

Jones  v.  Baker,  7  Cow.  445 295 

Jones  v.  Boyce,  1  Stark.  493 598 

tJones  v.  Bq&wn,  54  Iowa,  74,  6  N.  W.  140  535 
tJones  v.  Brownlee,  161  Mo.  258,  61  S.  W. 

795,  53  L.  R.  A.  445 379 

tJones  v.  Chanute,  63  Kan.  243,  65  Pac. 

243  69 

Jones  v.  Corporation,  14  Q.  B.  Div.  890. . .  591 
tJones  T.  Finch,  84  Va.  207,  4  S.  E.  342..  277 

tJones  v.  Gale,  22  Mo.  App.  637 196 

Jones  v.  Givin,  Gilb.  185,  220 276 

tJones  v.  Hannovan,  55  Mo.  462 44 

Jones  v.  Hoar,  5  Pick.  285 139 

tJones  v.  Jones,  40  Misc.  Rep.  360,  83  N. 

Y.  Supp.  325 656 

Jones  y.  Perry,  2  Esp.  482 485 

Jones  v.  Powell,  Hut. '136 481 

tJones  v.  Railroad  Co.,  125  N.  C.  227,  34 

S.  E.  398 270 

tJonea  v.  Stanly,  76  N.  C.  355 117 

tJones  v.  Townsend's  Adm'x,  21  Fla,  431, 

58  Am.  Rep.  476 351 

Joseph  B.  Thomas,  The  (D.  C.)  81  Fed.  578  98 

Jordan  v.  Lyster,  Cro.  Eliz.  273 316 

Jordin  v.  Crump,  8  Mees.  &  W.  782 103 

TJoy  v.  Morgan,  35  Minn.  184,  28  N.  W. 

237  67 

Joyce  T.  Martin,  15  R.  I.  558,  10  All.  620  463 

tKahl   v.    Railroad   Co.,    95   Ala.    337,    10 

South.  661 684 

Kain  v.  Smith,  80  N.  Y.  458-468 170 

tKarasek  v.  Peier,  22  Wash.  419,  61  Pac. 

33,  50  L.  R.  A.  345 ...-  6 

tKatz  v.  Walkinshaw  (Cal.)  70  Pac.  663, 

74  Pac.  766 60 

tKaucher  v.  Blinn,  29  Ohio  St.  62,  23  Am. 

Rep.  727 313 

KauCman  v.  Griesemer,  26  Pa.  407,  67  Am. 

Dec.  437 432 

tKavanagh  v.  Barber,  131  N.  Y.  211,  30  N. 

E.  235,  15  L.  R.  A.  689 467 

Keats  Y.  Hugo,  115  Mass.  204,  215,  15  Am. 

Rep.  80  49 

tKeats  v.  Hugo,  115  Mass.  204,  15  Am. 

Rep.    80 6 


Page 
tKeenan  v.  Railroad  Co.,  145  N.  Y.  190,  39 

N.  E.  711,  45  Am.  St.  Rep.  604 623 

Keenholts  v.  Becker,  3  Denio,  346 324 

Keffe  v.  Railroad  Co.,  21  Minn.  207,  18 

Am.  Rep.  393 673 

tKeit  v.  Wyman,  67  Hun,  337,  22  N.  Y. 

Supp.  133 296 

Kellogg  v.  Railroad  Co.,  26  Wis.  224,  7 

Am.  Rep.  69 77 

Kelly  v.  Bemis,  4  Gray,  83,  64  Am.  Dec. 

50  234 

tKelly  v.  Bemis,  4  Gray,  83,  64  Am.  Dec. 

50  229 

Kelly  v.  Mayor,  11  N.  Y.  432 607,  608 

tKelly  v.  Railroad  Co.  (1895)  1  Q.  B.  944, 

946  138 

Kelly  v.  Tilton,  2  Abb.  Dec.  495 484 

Kemp  v.  Neville,  10  C.  B.  (N.  S.)  550....  231 

Kendall  v.  Stone,  5  N.  Y.  14 324,  387 

tKennedy  v.  Publishing  Co.,  41  Hun,  422..  388 

jKennedy  v.  Shea,  110  Mass.  147 553 

tKenney  y.  McLaughlin,  5  Gray,  3,  66 

Am.  Dec.  345 354 

Kerle  v.  Osgood,  1  Vent.  50 315 

tKerr  v.  Mount,  28  N.  Y.  659 246 

Ketcham  v.  Newman,  141  N.  Y.  205,  36  N. 

E.  197,  24  L.  R.  A.  102 51 

tKetcham  y.  Newman,  141  N.  Y.  205,  210, 

36  N.  E.  197,  24  L.  R.  A.  102.- 50,  51 

tKhron  y.  Brock,  144  Mass.  516,  11  N.  E. 

748  610 

tKidd  v.  Ward,  91  Iowa,  371,  59  N.  W.  279  312 

Kidder  y.  Parkhurst,  3  Allen,  393 26 

tKiff  v.  Youmans,  86  N.  Y.  324,  40  Am. 

Rep.  543 71,  200,  205 

Kilgore  y.  Jordan,  17  Tex.  341 168 

tKilgour  v.  Newspaper  Co.,  96  Md.  16,  53 

Atl.  716 383 

Kilham  v.  Ward,  2  Mass.  236 38 

tKimber  y.  Ass'n  (1893)  1  Q.  B.  65 373 

tKimmis  y.  Stiles,  44  Vt.  351 327 

King  v.  Hoare,  13  M.  &  W.  494 179 

King  v.  Lake,  2  Vent.  28 31 ', 

tKing  v.  Patterson,  49  N.  J.  Law,  417,  9 

Atl.  705,  60  Am.  Rep.  622 358,  368 

tKing  v.  Pomeroy,  121  Fed.  287,  292 36 

King  v.  Railroad  Co.,  66  N.  Y.  181,  23  Am. 

Rep.  37 607 

King  y.  Root,  4  Wend.  113,  114,  139,  21 

Am.  Dec.  102 348,  372 

Kingsbury  y.  Bradstreet  Co.,  116  N.  Y. 

211,  22  N.  E.  365 332 

tKinnaird  v.  Oil  Co.,  89  Ky.  468,  12  S.  W. 

937,  7  L.  R.  A.  451,  25  Am.  St.  Rep.  545  445 
Kinney  v.  Koopmann,  116  Ala.  310,  22 

South.  593,  37  L.   R.  A.  497,  67  Am.   St 

Rep.  119 99 

tKinney  v.  Nash,  3  N.  Y.  177 318,  382 

tKirk  v.  Garrett,  84  Md.  383,  35  AtK  1089  255 

tKirk  v.  Gregory,  1  Exch.  Div.  55 493 

tKirkpatrick  v.  Reeves,  121  Ind.  280,  22 

N.  E.  139  644 

tKleebauer  v.  Fuse  &  Explosives  Co. 

(Cal.)  69  Pac.  246,  60  L.  R.  A.  377 452 

tKley  v.  Healy,  127  N.  Y.  555,  28  N.  E. 

593  656 

Klinck  v.  Colby,  46  N.  Y.  427,  7  Am. 

Rep.  360  359,  379 

tKlinck  v.  Colby,  46  N.  Y.  427,  7  Am. 

Rep.    360    353 


CASES  CITED. 


XXXV11 


Page 
tKllne  T.  Eubanks,  109  La.  241,  83  South. 

211  117 

tKline  v.  Hibbard,  80  Hun,  50,  29  N.  Y. 

Supp.  807;  155  N.  Y.  679,  49  N.  E.  1099  292 

tKlous  v.  Hennessey,  13  R.  I.  332 20 

tKlumph  v.  Dunn,  66  Pa.  141,  5  Am.  Rep. 

355  308 

fKnabe  v.  Levelle  (Super.  Ct.  N.  Y.)  23 

N.  Y.  Supp.  818  6 

tKnapp  v.  Roche,  94  N.  Y.  329 171 

Knauss  v.  Brua,  107  Pa.  85 456 

Knight  v.  Albert,  6  Pa.  472,  47  Am.  Dec. 

478  13 

tKnight  v.  Gibbs,  1  Ad.  &  El.  43 112 

Knight  v.  Railroad  Co.,  108  Pa.  250,  56 

Am.  Rep.  200  683 

tKnight  v.  Railroad  Co.,  108  Pa.  250,  56 

Am.  Rep.  200  683 

Knot  v.  Gay,  1  Root,  66 258 

tKnowles  v.  Railroad  Co.,  175  Pa.  623,  34 

Atl.  974,  52  Am.  St.  Rep.  860 69 

tKnowles  v.  Railroad  Co.,  175  Pa.  G23,  34 

Atl.  974,  52  Am.  St.  Rep.  860 467 

fKnox  v.  Tucker,  48  Me.  373,  77  Am.  Dec. 

233  416 

Koelsch  v.  Philadelphia  Co.,  152  Pa.  355, 

25   Atl.    522,    18   L.    R.    A.    759,    34   Am. 

St.  Rep.  653  98 

Kohn  v.  Lovett,  44  Ga.  251 12 

Kolb  v.  Surety  Co.,  176  N.  Y.  233,  68  N. 

E.  247  176 

Kolka  v.  Jones,  6  N.  D.  461,  71  N.  W. 

558,  66  Am.  St.  Rep.  615 287 

Kolsti  v.  Railroad  Co.,  32  Minn.  133,  19 

N.  W.  655 574 

Koney  v.  Ward,  36  How.  Prac.  255 486 

tKoplitz  v.  St.  Paul,  86  Minn.  373,  90 

N.  W.  794,  58  L.  R.  A.  74 596 

fKountze  v.  Kennedy,  147  N.  Y.  124,  133, 

41   N.    E.   414,   29   L.  R.   A.   360,  49  Am. 

St.  Rep.  651 641,  642 

Kramer  v.  Railroad  Co.,  25  Cal.  434 624 

Kramer  v.  Stock,  10  Watts,  115 283 

Krebs  v.  Oliver,  12  Gray,  239 364 

tKrebs  v.  Oliver,  12  Gray,  242 308 

fKrish  v.  Ford  (Ky.)  43  S.  W.  237 51 

Krom  v.  Schoonmaker,  3  Barb.  647 125 

tKrug  v.  Pitass,  162  N.  Y.  154,  56  N. 

E.  526,  76  Am.  St.  Rep.  317 331,  340 

tKrulevitz  v.  Railroad  Co.,  143  Mass.  228, 

9  N.  E.  613  226 

tKrup  v.  Corley,  95  Mo.  App.  640,  69 

S.  W.  609 307 

fKuelling  v.  Mfg.  Co.,  88  App.  Div.  309, 

84  N.  Y.  Supp.  622 156 

tKuhn  v.  Brownfleld,  34  W.  Va.  252,  12 

S.  E.  519,  11  L.  R.  A.  700 138 

tKuhn  v.  Jewett,  32  N.  J.  Eq.  647 83 

Kujek  v.  Goldman,  5  Misc.  Rep.  360,  25 

N.    Y.    Supp.   753;     9   Misc.    Rep.   34,    29 

N.  Y.  Supp.  294 21 

fKunz  v.  Troy,  104  N.  Y.  344,  351,  10  N. 

E.  442,  58  Am.  Rep.  508 584 

tKuzniak  v.  Kozminskl,  107  Mich.  445, 

65   N.   W.   275,   61  Am.   St.   Rep.   344....      6 

tLacy   v.    Mitchell,    23   Ind.    67 272 

tLaflin    Powder   Co.    v.    Tearney,   131   111. 
322,   325,   23  N.    E.   389,  7  L.   R.   A.  262, 

19   Am.    St.    Rep.    34 425,  452 

tLaherty  v.    Hogan,   13   Daly,    533 488 


Page 
fLaidlaw  T.  Sage,  158  N.  T.  73,  52  N.  E. 

679,  44  L.  R.  A.  216 91 

tLake  v.  Milliken,  62  Me.  240,  16  Am. 

Rep.  456  100 

tLake  Shore  &  M.  S.  R.  Co.  v.  Mclntosh, 

140  Ind.  261,  38  N.  E.  476 596 

Lakin  v.  Ames,  10  Cush.  198 389 

tLamb  v.  Stone,  11  Pick.  527 25 

fLambert  v.  Robinson,  162  Mass.  34,  37 

N.  E.  753,  44  Am.  St  Rep.  326 200 

tLamberton  v.  Dunham,  165  Pa.  129,  30 

Atl.  716  642 

tLammers  v.  Railroad  Co.,  82  Minn.  120, 

84  N.  W.  728 596 

Lampet  v.  Starkey,  10  Coke,  46 392 

fLanark  v.  Dougherty,  153  111.  163,  38  N. 

E.  892  569 

tLand  v.  Fitzgerald,  68  N.  J.  Law,  28, 

52  Atl.  229  657 

Lander  T.  Seaver,  32  Vt.  123,  76  Am. 

Dec.  156  211 

tLanders  v.  Smith,  78  Me.  212,  3  Atl.  463  28 

Landt  v.  Hilts,  19  Barb.  283 244 

Lane  v.  Atlantic  Works,  111  Mass.  136.  .97,  99 
Lane  v.  Cotton,  1  Ld.  Raym.  646,  12  Mod. 

472  543 

tLane  v.  Cox  (1897)  1  Q.  B.  415 463 

fLange  v.  Benedict,  73  N.  Y.  12,  34,  29 

Am.  Rep.  80 535 

Langford  v.  Railroad  Co.,  144  Mass.  431, 

11  N.  E.  697 279 

tLangford  v.  Railroad  Co.,  144  Mass.  431, 

11  N.  E.  697 237 

Laning  v.  Railroad  Co.,  49  N.  Y.  521,  522, 

10  Am.  Rep.  417,  447 611,  617 

tLanpher  T.  Clark,  149  N.  Y.  472,  44  N. 

E.  182  363 

fLanpher  y.  Dewell,  56  Iowa,  153,  9  N. 

W.  101  229 

Lansing  v.  Montgomery,  2  Johns.  382....  170 
fLansing  v.  Smith,  8  Cow.  146;  4  Wend.  9, 

21  Am.  Dec.  89 69 

tLansing  v.  Stone,  37  Barb.  15 130 

LaPlace  v.  Aupolx,  1  Johns.  Gas.  407 519 

tLapp  v.  Guttenkunst  (Ky.)  44  S.  W.  964  51 

tLarkin  v.  Noonan,  19  Wis.  82 375 

Larmore  v.  Iron  Co.,  101  N.  Y.  391,  4  N. 

E.  752,  54  Am.  Rep.  718 9 

tLarned  v.  Wheeler,  140  Mass.  390,  5  N. 

E.  290,  54  Am.  Rep.  483 43 

tLarson  v.  Furlong,  50  Wis.  681,  8  N.  W. 

1;  63  Wis.  323,  23  N.  W.  584 482 

tLarson  v.  Railroad  Co.,  110  Mo.  234,  19 

S.  W.  416,  16  L.  R.  A.  330,  33  Am.   St. 

Rep.  439  51 

Lasala  v.  Holbrook,  4  Paige,  169,  170,  25 

Am.  Dec.  524 48,  53 

Laumier  v.  Francis,  23  Mo.  181 432 

Laverty  v.  Snethen,  68  N.  Y.  522,  23  Am. 

Rep.  184  507 

tLavery  v.  Crooke,  52  Wis.  612,  9  N.  W. 

599,  38  Am.  Rep.  768 553 

fLawrence  v.  Green,  70  Cal.  417,  11  Pac. 

750,  59  Am.  Rep.  428 598 

Lawrence  v.  Hedger,  3  Taunt.  14 250 

Lawrence  v.  Railroad  Co.,  16  Adol.  &  E. 

(N.  S.)  643-653 52 

Lawson  v.  State,  30  Ala.  14 186 

tLawton  v.  Steele,  119  N.  Y.  237,  23  N. 

E.  880,  7  L.  R.  A.  134,  16  Am.  St.   Rep. 

813    479 


xxxviii 


CASES  CITED. 


Page 

tLeachman  r.  Dougherty,  81  111.  324 547 

Leader  v.  Moxton,  3  Wils.   460 52 

Leame  v.  Bray,  3  East.  593,  595... 120,  129,  494 

tLearock  v.   Putnam,  111  Mass.   499 36 

Learoyd  v.  Godfrey,   138  Mass.  315 559 

fLease   v.   Vance,   28   Iowa,    509 36 

Leavitt  v.    Railroad   Co.,   89   Me.    509,   36 

Atl.  998,  36  L.   R.  A.  382 96 

tLeavitt  v.   Thompson,  52  N.   Y.   62 402 

Le  Clair  v.  Railroad  Co.,  20  Minn.  9  (Gil. 

1)    616 

fLe  Clear  v.    Perkins,   103   Mich.   131,   61 

N.   W.  .357,   26   L.    R.   A.   627.... 270,  274,  289 
tLedbetter  v.   Davis,  121  Ind.   119,  22  N. 

B.   744    666 

Ledley  v.  Hays,  1  Cal.  160 544 

Ledwith  v.   Catchpole,  Cald.   Cas.  291 250 

fLee  v.   McLaughlin,  86  Me.   410,   30  Atl. 

65,   26   L.   R.    A.   197 463 

(•Lee  v.   Tarplln,   183   Mass.   52,   66   N.    E. 

431    648,  662 

fLee  v.   Woolsey,   19  Johns.   319,  10  Am. 

Dec.   230    205 

Leever  v.  Hamill,  57  Ind.  423 279 

fLeger  v.  Warren,  62  Ohio  St.  500,  57  N. 

E.  506,  51  L.  R.  A.  193,  78  Am.  St.  Rep. 

738    255 

fLehigh  VaL   R.  Co.  v.  Greiner,  113  Pa, 

600,  6  Atl.  246 569 

tLehigh    Zinc    &    Iron    Co.    v.    Bamford, 

150  U.  S.  665,  14  Sup.  Ct.  219,  37  L.  Ed. 

1215    641 

tLehmann  v.  Schmidt,  87  Cal.  15,  25  Pac. 

161    141 

fLeidleln  v.  Meyer,  95  Mich.  586,  55  N.  W. 

367    435 

fLe  Massena  v.  Storm,  62  App.  Dlv.  150, 

70  N.    Y.    Supp.    882 387 

tLemmon  v.  Webb   (1894)   A.   C.  1 477 

tLent  v.   Railroad  Co.,  120  N.   Y.  467,  24 

N.    E.    653    569 

Leonard  v.   Collins,  70  N.  Y.  90 612 

Leonard  v.  Navigation  Co.,  84  N.   Y.  48, 

38   Am.    Rep.    491    682 

fLepnard  v.   Springer,  197  111.  532,  64  N. 

E.   299    644,  656,  669 

Leonard  v.  Tidd,  3  Mete.  6 517 

tLetts  v.   Kessler,   54  Ohio  St.  73,  42  N. 

E.   765,   40   L.    R.   A.    177 6 

tLevl  v.  Booth,  58  Md.  305,  42  Am.  Rep. 

332    123 

ILevy  v.  Brothers,  4  Misc.  Rep.  48,  23  N. 

Y.  Supp.  825 6 

Levy  v.  Langridge,  4  Mees.  &  W.  337.. 153-155 

Lewis  v.  Chapman,  16  N.  Y.  369 332,  367 

fLewis  v.  Clark,  59  Vt.  363,  8  Atl.  158 515 

tLewis  v.   Littlefleld,  15  Me.   233 164 

tLewis  v.  Palmer,  6  Wend.  370 241 

tLewis  v.  Railroad  Co.,  162  N.  Y.  52,  56 

N.    E.    548    598 

Lewis  v.  Read,  13  Mees.  &  W.  834 183 

tLewis  v.   Shull,   67   Hun,   543,   22   N.   Y. 

Supp.    484    354 

tLewis  v.  Terry,  111  Cal.  39,  43  Pac.  398, 

31  L.   R.   A.   220,  52  Am.   St.   Rep.  146..  162 
tLibby  v.  Railroad  Co.,  85  Me.  34,  26  Atl. 

943,  20  L.   R.   A.   812 83,  84 

Lienow  v.   Ritchie,    8  Pick.    235 398 

tLike  v.  McKinstry,  41  Barb.  186,  3  Abb. 

Dec.    62    385 

fLiles  v.  Caster,  42  Ohio  St  631 379 


Page 
tLilllbrldge  T.  McCann,  117  Mich.  84,  75 

N.  W.  288,  41  L.  R.  A.  381,  72  Am.  St. 

Rep.  553  82,  83 

tLimpus  v.  Omnibus  Co.,  1  Hurl.  &  C. 

526  606 

tLincoln  v.  Com.,  164  Mass.  368,  374,  41  f 

N.  E.  489 474 

Lincoln  v.  Hapgood,  11  Mass.  350 38 

Linden  v.  Graham,  1  Duer,  670 387 

tLinden  v.  Graham,  1  Duer,  670 385 

tLindley  v.  Horton,  27  Conn.  58 331 

Lindsey  v.  Smith,  7  Johns.  359 381 

tLinington  v.  Strong,  107  111.  295 666 

jLinnehan  T.  Sampson,  126  Mass.  506,  30 

Am.  Rep.  692 600 

tLinnen  v.  Banfleld,  114  Mich.  93,  72  N. 

W.  1 255 

tLisabelle  v.  Hubert,  23  R.  I.  456,  50  Atl. 

837 264 

fLister  T.  Ferryman,  L.  R.  4  E.'  &  I.  App. 

521  252,  255 

Little  T.  Lathrop,  5  Greenl.  356 415 

Little  v.  Moore,  4  N.  J.  Law,  75,  7  Am. 

Dec.  574 236 

tLlttle  v.  Railroad  Co.,  65  Minn.  48,  67  N. 

W.  846,  33  L.  R.  A.  423,  60  Am.  St.  Rep. 

421  6SO 

tLittlejohn  v.  Railroad  Co.,  148  Mass.  478, 

20  N.  E.  103,  2  L.  R.  A.  502 138 

Livingston  v.  Bishop,  1  Johns.  290,  3  Am. 

Dec.  330 179 

Livingston  v.  Jefferson,  1  Brock.  203,  Fed. 

Cas.  No.  8,411 679,  681 

Livingston  v.  McDonald,  21  Iowa,  160,  89 

Am.  Dec.  563 432 

tLobdell  v.  Stowell,  51  N.  Y.  70 515 

tLocke  v.  Bradstreet  Co.  (C.  C.)  22  Fed. 

771  368 

tLockhart  v.  Geir,  54  Wis.  133,  U  N.  W. 

254  407 

tLockwood  v.  Boom  Co.,  42  Mich.  536,  4 

N.  W.  292 141 

Lockwood  v.  Bull,  1  Cow.  322,  13  Am.  Dec. 

539  170 

tLockwood  Co.  T.  Lawrence,  77  Me.  297, 

52  Am.  Rep.  763 442 

tLoeser  v.  Humphrey,  41  Ohio  St.  378,  52 

Am.  Rep.  86 137 

Loftus  v.  Fraz,  43  N.  J.  Law,  667 230 

Logan  v.  Austin,  1  Stew.  476 194,  193 

Lombard  v.  Oliver,  5  Gray,  8 277 

tLong  v.  Warren,  68  N.  Y.  426 648,  661,  665 

tLong  v.  Woodman,  58  Me.  49 656 

tLong  Island  R.  Co.  v.  Garvey,  159  N.  Y. 

334,  54  N.  E.  60 474 

Longmeid  v.  Holliday,  6  Law  &  Eq.  Rep. 

562  161 

tLoomis  v.  Jewett,  35  Hun,  313 209 

tLoomis  v.  Render,  41  Hun,  2687 237 

Looney  v.  McLean,  129  Mass.  33,  37  Am. 

Rep.  295 127 

Lord  v.  Bigelow,  124  Mass.  185 525 

tLord  v.  De  Witt  (C.  C.)  116  Fed.  713....  448 
tLord  T.  Langdon,  91  Me.  221,  39  Atl.  552  6 
tLord  v.  Tiffany,  98  N.  Y.  412,  50  Am. 

Rep.  689 171 

Lord  v.  Wormwood,  29  Me.  282,  1  Am. 

Rep.  586 415 

Losee  v.  Buchanan,  51  N.  Y.  476,  10  Am. 

Rep.   623 5C5 


CASES  CITED. 


XXXIX 


Page 
tLosee  T.  Buchanan,  51  N.  T.  476,  486,  10 

Am.  Rep.  623 665 

tLosee  v.  Clute,  51  N.  Y.  494,  10  Am.  Rep. 

638    156 

tLothrop  v.  Adams,  133  Mass.  471,  481,  43 

Am.   Rep.   528 170 

Louisville,  etc.,  R.   Co.  v.   Case,  9  Bush, 

728   595 

tlxmisville,  etc.,  Ferry  Co.  v.  Nolan,  135 

Ind.  60,  34  N.  E.  710 78,  82 

tLouisville,    etc.,   R.    Co.   T.   Bonhayo,   94 

Ky.  67,  21  S.   W.  526 60 

tLouisville,    etc.,   R.   Co.   v.   Nitsche,   126 

Ind.  229,  26  N.  E.  51,  9  L.  R.  A.  750,  22 

Am.    St.   Rep.   582 79,83 

tLouisville,  N.  A.  &  C.  R.  Co.  v.  Falvey, 

104  Ind.  409,  3  N.  E.  389,  4  N.  E.  908....  137 
tLovejoy  v.   Isbell,  73  Conn.  368,  47  Atl. 

682     666 

Lovejoy  v.  Murray,  3  Wall.  1,  9,  18  L.  Ed. 

129 179,  184,  624 

Lovejoy  v.  Whitcomb,  174  Mass.  586,  55  N. 

E.  322 319 

tLovell  v.  Shea,  18  N.  Y.  Supp.  193 123 

Lovett  v.  Railroad  Co.,  9  Allen,  557 605 

tLowe  v.  Wartman,  47  N.  J.  Law,  413,  1 

Atl.   489 280 

Luby  v.  Bennett,  111  Wis.  613,  87  N.  W. 

804,  56  L.  R.  A.  261,  87  Am.  St.  Rep.  897  286 
tLuby  v.  Bennett,  111  Wis.  613,  87  N.  W. 

804,  56  L.  R.  A.  261,  87  Am.  St.* Rep.  897  280 
Lucas  v.  Railroad  Co.,  6  Gray,  64,  66  Am. 

Dec.    406 569 

Lucas  v.   Trumbull,  15  Gray,   307 166 

tLuce  v.   Dexter,   135   Mass.   23 171 

tLucke  v.   Assembly,   77  Md.   396,   26  Atl. 

505.   19  L.   R.   A.   408,   39  Am.   St.   Rep. 

421   71 

tLucke  v.   Clotbi:^-   Cutters,   etc.,  77  Md. 

396,  405,  26  Atl.  ^'    .  C07,  19  L.  R.  A.  408, 

39  Am.  St.   Rep.   i21 117 

tLudlow  v.  Railroad  Co.,  6  Lans.  (N.  Y.) 

128    66 

Ludwig  v.  Pillsbury,  35  Minn.  256,  28  N. 

W.  505 575 

tLufkin  v.  Zane,  157  Mass.  117,  31  N.  E. 

757,  77  L.  R.  A.  251,  34  Am.  St.  Rep.  262  463 

Lukeheart  v.   Byerly,   53   Pa.   418 382 

tLumby  v.  Allday,  1  Cromp.  &  J.  301....  322 
Lumley  v.   Gye,  2  El.   &  Bl.  216,  Law  J. 

22  Q.  B.  463 113-116,  295,  299 

tLumley  v.  Gye,  2  El.  &  Bl.  216 112,  116 

JLund  v.   New  Bedford,  121  Mass.   286...    43 
tLund  v.   Tyler,  115  Iowa,  236,  88  N.  W. 

333   196 

Luscombe  v.  Steer,  17  Law  T.  (N.  S.)  229  420 

Luse  v.  Jones,  39  N.  J.  Law,  707 507 

Luther  v.  Winnisimmet  Co.,  9  Cush.  171 

430,  432 
tLybe's  Appeal,  106  Pa.  626,  51  Am.  Rep. 

542    69 

Lyle  v.  Clason,  1  Caines,  581 341 

tLynch  v.  Knight.  9  H.  L.  Cas.  577 62,  327 

Lynch  v.  Mayor,  etc.,  76  N.  Y.  60,  32  Am. 

Rep.   271 431 

tLynch  v.  McNally,  73  N.  Y.  347 488 

Lynch  v.  Nurdin,  1  Adol.  &  E.  (N.  S.)  29; 

1  Q.    B.   29 90,  103,  161 

Lynch  v.  Railroad  Co.,  24  Hun,  506 223 

tLyach  v.  Smith,  104  Mass.  52,  6  Am.  Rep. 

188    ..  584 


Page 
ILynn  Gas,  etc.,  Co.  T.  Insurance  Co.,  158 

Mass.  570,  575,  33  N.  E.  690,  20  L.  R.  A. 

297,  35  Am.  St.  Rep.  540 91 

Lynn  Gas  &  Electric  Co.  v.  Insurance  Co., 

158  Mass.  570,  33  N.  E.  690.  20  L.  R.  A. 

297,  35  Am.  St.  Rep.  540 96 

Lyons  v.  Martin,  8  Adol.  &  E.  512 603 

tLyons  v.  Railroad  Co.,  89  Hun,  374,  35 

N.  Y.  Supp.  372;    152  N.  Y.  654/47  N.  E. 

1109  137 

Me  Adams  v.  Gates,  24  Mo.  223 647 

tMcAllister  v.  Clement,  75  Cal.  182,  16 

Pac.  775 67 

McAlpln  v.  Powell,  70  N.  Y.  126,  26  Am. 

Rep.  555 9 

tMcAndrews  v.  Burns,  39  N.  J.  Law,  117  622 
tMcAndrews  v.  Collerd,  42  N.  J.  Law, 

189,  36  Am.  Rep.  508 452,  474 

tMcBee  v.  Fulton,  47  Md.  403,  28  Am.  Rep. 

465  354 

tMcCabe  v.  O'Connor,  4  App.  Div.  354,  38 

N.  Y.  Supp.  572;    162  N.  Y.  600,  57  N.  E. 

1116  164 

McCafferty  y.  Railroad  Co.,  61  N.  Y.  178, 

19  Am.  Rep.  267 607 

tMcCardle  v.  McGinley,  86  Ind.  538,  44 

Am.  Rep.  343 287 

McCarthy  v.  De  Armit,  99  Pa.  63 255 

tMcCarthy  v.  De  Armit,  99  Pa.  63 255 

McCarthy  v.  Railroad  Co.,  18  Kan.  46,  26 

Am.  Rep.  742 682 

tMcCarthy  v.  St.  Paul,  22  Minn.  527 35 

tMcCarthy  v.  Timmins,  178  Mass.  378,  59 

N.  E.  1038,  86  Am.  St.  Rep.  490 606 

McCauley  v.  Norcross,  155  Mass.  584,  30  N. 

E.  464 98 

tMcCauley  v.  Norcross,  155  Mass.  584,  30 

N.  E.  464 109 

tMcClafferty  v.  Phllp,  151  Pa.  86,  24  Atl. 

1042  266,  269,  274 

McClellan  v.  Scott,  24  Wis.  81-87 665 

McClurg  v.  Ross,  5  Bin.  218 330 

McCombie  v.  Davies,  6  East,  540 617 

McConnel  v.  Kibbe,  33  111.  179,  85  Am. 

Dec.  265 66 

tMcConnell  v.  Wright  (1903)  1  Ch.  546, 

558  638 

McCorkle  v.  Binns,  5  Bin.  345,  6  Am.  Rep. 

420  330 

McCormlck  v.  Sisson,  7  Cow.  715 262 

McCullough  v.  Com.,  67  Pa.  32 25S 

tMcCune  v.  Gas  Co.,  30  Conn.  521,  79  Am. 

Dec.  278 71 

McDonald  v.  Rooke,  2  Bing.  N.  C.  217,  2 

Scott,  359 27* 

McDonald  v.  Snelllng,  14  Allen,  290,  299, 

92  Am.  Dec.  768 98,  99 

tMcDonald  v.  Snelling,  14  Allen,  290,  92 

Am.  Dec.  768 109 

tMacdougall  v.  Knight,  17  Q.  B.  D.  636..  373 
tMcDowell  v.  Railroad  Co.  (1903)  2  K.  B. 

331  10$ 

tMcEntee  v.  Steamboat  Co.,  45  N.  Y.  34, 

6  Am.  Rep.  28 622 

tMcFadden  v.  Whitney,  51  N.  J.  Law,  391, 

18  Atl.  62 24S 

tMcGarrahan  v.  Lavers,  15  R.  I.  302,  3 

Atl.  592 260 

tMcGarry  v.  Railroad  Co.,  182  Mass.  123, 

65  N.  E.  45 209 


xl 


CASES   CITED. 


Page 
tMcGehee  T.  Insurance  Co.,  50  C.  C.  A. 

551,  112  Fed.  853 379 

fMcGettigan  T.  Potts,  149  Pa.  155,  24  Atl. 

198  60 

tMcGinn  T.  Tobey,  62  Mich.  252,  28  N.  W. 

818,  4  Am.  St.  Rep.  848 661 

McGlinchy  T.  Barrows,  41  Me.  74 240 

McGoldrick  v.  Willits,  52  N.  Y.  612 122 

McGregor  v.  Thwaites,  3  Barn.  &  C.  24..  330 
fMcGuiness  v.  Butler,  159  Mass.  233,  236, 

34  N.  E.  259,  38  Am.  St.  Rep.  412 557 

McGuire  v.  Grant,  25  N.  J.  Law,  356,  67 

Am.  Dec.  49 48,  50 

fMcGuire  v.  Grant,  25  N.  J.  Law,  356,  67 

Am.  Dec.  49 50 

tMachado  v.  Fontes  [1897]  2  Q.  B.  231...  676 
Machine  Co.  v.  Willan,  63  Neb.  391,  88  N. 

W.  497,  56  L.  R.  A.  338,  93  Am.  St.  Rep. 

449  287 

tMack  v.  Kelsey,  61  Vt.  399,  17  Atl.  780 181 

McKay  v.  State,  44  Tex.  43 187 

tMcKee  v.  Eaton,  26  Kan.  226 666 

tMcKelvey  v.  McKelvey  (Tenn.)  77  S.  W. 

664  212 

tMcKelvey  v.  Marsh,  63  App.  Div.  396,  71 

N.  Y.  Supp.  541 229 

McKenna  v.  Fisk,  1  How.  241,  247,  11 

L.  Ed.  117 679,  681 

McKeon  v.  See,  51  N.  Y.  300,  10  Am. 

Rep.  659  54 

tMcKeon  v.  See,  51  N.  Y.  300,  10  Am. 

Rep.  659  429,  448 

McKown  v.  Hunter,  30  N.  Y.  627 261,  262 

McLaughlin  v.  Cowley,  127  Mass.  316 378 

tMcLaughlin  v.  Fisher,  136  111.  Ill,  24 

N.  E.  60 382 

tMcLendon  v.  State,  92  Tenn.  520,  22  S. 

W.  200,  21  L.  R.  A.  738 241 

tMcLennon  v.  Richardson,  15  Gray,  74, 

77  Am.  Dec.  353 258 

tMcLeod  v.  Crosby,  128  Mich.  641.  87 

N.  W.  883 353 

tMcLeod  v.  Jones,  105  Mass.  403,  7  Am. 

Rep.  539  394 

McMahon  v.  Mayor,  33  N.  Y.  642 580 

tMcMahon  v.  Railroad  Co.,  39  Md.  439..  582 

McManus  v.  Crickett,  1  East,  106 603 

McMorris  v.  Simpson,  21  Wend.  610 499 

tMcNamara  v.  Clintonville,  62  Wis.  207, 

22  N.  W.  472,  51  Am.  Rep.  722 137 

McNamee  v.  Minke,  49  Md.  122,  133.. .283,  286 
tMcNatt  v.  McRae,  117  Ga.  858,  45  S. 

B.  248  196 

tMcNay  v.  Stratton,  9  111.  App.  215 220 

tMcQuire  v.  News  Co.  (1903)  2  K.  B.  100  373 
t  Madden  v.  Brown,  8  App.  Div.  454,  40 

N.  Y.  Supp.  714 203 

Magnin  v.  Dinsmore,  70  N.  Y.  410,  417, 

26  Am.  Rep.  608,  610 502,  507 

tMagnin  v.  Dinsmore,  70  N.  Y.  410,  26 

Am.  Rep.  608 522 

fMagowan  v.  Rickey,  64  N.  J.  Law,  402, 

45  Atl.  804 263,  274 

fMahaffey  v.  Byers,  151  Pa.  92,  25  Atl. 

93  252,  270 

Mahan  v.  Brown,  13  Wend.  261,  38  Am. 

Dec.  461  4 

fMahan  v.  Brown,  13  Wend.  261,  38  Am. 

Dec.  461  6 

Mahler  v.  Transportation  Co.,  35  N.  Y. 

352    677 


Page 
tMahogany    T.    Ward,    1«    R.    T.    479,    17 

Atl.   860,    27   Am.    St.    Rep.    753 100 

tMairs   v.    Ass'n,    89   N.    Y.    498 389 

ilalachy    v.    Soper,    3    Bing.    N.    C.    371; 

3    Scott,   723 70,    386,    3S7 

tMalachy  v.  Soper,  3  Bing.  N.  C.  371.  .71,  385 
Mali  v.  Lord,  39  N.  Y.  381,  100  Am. 

Dec.    448   603 

tMallniemi  v.   Gronlund,  92  Mich.  222,  52 

N.   W.   627,   31  Am.    St.    Rep.   576 252 

tManders   v.    Williams,    4   Ex.    339 512 

Mangam  v.    Railroad   Co.,    38   N.   Y.   455, 

461,    98  Am.    Dec.    66 583 

Mangan   v.    Atterton,    4   Hurl.    &   C.    388, 

L.    R.   1   Exch.    239 108 

Mangold  v.  Thorpe,  33  N.  J.  Law,  134..  230 
t  Mangold  v.  Thorpe,  33  N.  J.  Law,  134..  547 
Mann  v.  President,  etc.,  91  N.  Y.  500...  611 

tMannlng  v.   Albee,   11  Allen,   522 662 

Manning  v.  Avery,  3  Keb.  153 386,  387 

tMaple  v.   Railroad  Co.,  40  Ohio  St.  313, 

48   Am.    Rep.    685 171 

Marble  v.   Chapin,   132   Mass.    225 344 

tMarine  Ins.  Co.  v.  Railroad  Co.   (C.  C.) 

41  Fed.  643 455 

tMarker   v.    Dunn,    68    Iowa,    720,    28    N. 

W.  38  354 

fMarkey  v.  Traction  Co.,  65  N.  J.  Law, 

82,    46  Atl.    573 588 

tMarkley   T.    Whitman,    95    Mich.    236,    54 

N.    W.    763,    20    L.    R.    A.    55,    35    Am. 

St.   Rep.  558 87 

Marks  v.  Townsend,  97  N.  Y.  590,  599...  245 
t  Marks  v.  Townsend,  97  N.  Y.  590,  601... 

246,  264,  280 
tMarlln    Fire    Arms    Co.    v.    Shields,    171 

N.    Y.    384,    390,    64    N.    E.    163,    59    L. 

R.  A.   310 '...71,  387 

Mars    v.    President,    etc.,    54    Hun,    625, 

8   N.   Y.    Supp.    107 96 

tMarsden  v.  Cornell,  62  N.  Y.  215,  221...  512 

Marsh  v.  Ellsworth,  50  N.  Y.  309 378,  379 

tMarsh  v.  Falker,  40  N.  Y.  562 641,  654 

t  Marshall   v.    Heller,   55  Wis.    392,   13   N. 

W.  236  220,  222 

tMarshall   v.    Hubbard,    117   U.    S.    415,    6 

Sup.    Ct.    806,    29    L.    Ed.    919 674 

Marshall   v.    Railroad   Co.,    11   C.    B.    655 

136,  137 
Martin   v.    Payne,    9   Johns.    387,    6    Am. 

Dec.    288   552 

tMartin    v.    Railroad    Co.,    62    Conn.    331, 

25  Atl.   239;    166  U.   S.  399,   17   Sup.   Ct. 

603,  41  L.   Ed.   1051 78,   622 

Martin  v.   Riddle,   26  Pa.  415 432 

Martin  v.   Stillwell,  13  Johns.   275,  7  Am. 

Dec.   374   302 

t  Marts  v.   State,  26  Ohio  St.  162 200 

Martyn  v.   Burlings,   Cro.   Eliz.   589 320 

tMarvin    v.    Mining    Co.,    55    N.    Y.    538, 

14  Am.    Rep.   322 61 

tMarvin    v.    Railroad    Co.,    79    Wis.    140, 

47   N.   W.   1123,    11  L.   R.   A.   506 83 

tMarvin  Safe  Co.  v.  Ward,  46  N.  J.  Law. 


19 


156 


Marzetti   v.    Williams,    1    Barn.    &   Adol. 

415    39 

Mason  v.    Hill,    3   Barn.    &   Adol.    304;    5 

Barn.   &   Adol.   1;    t  Nev.    &  M.   747.. 

39,  41,  442 


CASES   CITED. 


xli 


Page 
Mason   r.   Keeling,   1  Ld.   Raym.   606,   12 

Mod.   332 395 

Masser    v.    Railroad    Co.,    68    Iowa,    602, 

27    N.    W.    776 675 

Masten   v.   Deyo,   2  Wend.   424 271 

Matthew  v.   Ollerton,   Comb.   218 194 

Matthews  v.    Beach,  5   Sandf.  256 332 

tMattice    v.    Wllcox,    147    N.    Y.    624.    42 

N.   E.   270 322,   331,   383 

tMauldln    v.    Ball,    104    Tenn.    597,    58    S. 

W.    248    275 

May   v.    Burdett,    9   Adol.    &   E.    (N.    S.) 

101    484,   485 

tMay  v.  Burdett,  9  Q.   B.  101 488 

tMay  v.   Wood,    172   Mass.    11,   14,   51  N. 

E.    191    117 

tMayer  v.  Springer  (111.)  61  N.  E.  348....  499 

Mayer  v.  Walter,  64  Pa.  283 283,  286 

tMayer  v.   Walter,    64   Pa.   283 289 

tMayfleld  v.    Schwartz,   45   Minn.   150,   47 

N.    W.   448,   10   L.    R.    A.   606 661 

fMaynard  v.   Maynard,  49  Vt.  297 647 

tMaynard    v.    Sigman    (Neb.)    91    N.    W. 

576   270,   274 

tMayor  of  Albany  v.  Cunllff,  2  N.  Y.  174  459 
t Mayor,    etc.,     of    Bradford    v.    Pickles 

(1895)    A.    C.    587 60 

Mayor  of  Colchester  T.   Brooke,  7  Q.   B. 

339    478 

Mayor  of  Linn,  etc.,  v.  London,  4  Term 

R.   130,    141,    143,    144 37 

Mayrant   v.    Richardson,   1  Nott  &   McC. 

347,  9  Am.   Dec.  707 330 

Mead   v.    Bunn,    32   N.   Y.   275-280 664 

tMead   v.   Bunn,   32   N.   Y.   275 666 

Meade's  Case,   Lewin,   185 198 

fMehrhof  Bros.    Brick  Mfg.   Co.   v.   Rail- 
road Co.,  51  N.  J.  Law,  56,  16  Atl.  12..  467 

Meigs  v.    Lister,    23   N.    J.   Eq.   200 423 

Mellor  v.   Spateman,  1  Saund.  346a,  note 

2    39 

Mellor  v.   Spateman,  1  Wm.   Saund.  364b    65 

Melville   v.    Brown,   15   Mass.   82 513 

tMemphls    &    C.    R.    Co.    v.    Martin,    131 

Ala.    269,    30   South.    827 571 

tMenger    v.    Laur,    55    N.    J.    Law,    205, 

26  Atl.    180,   20  L.   R.   A.    61 571 

fMentel  v.   Hippely,   165  Pa.   558,  '30  Atl. 

1021    277 

tMentzer   v.    Sargeant,    115  Iowa,   527,   88 

N.   W.    1068 642 

Mercer  v.   Sparks,   Noy,   35 339 

Mercer   v.    Walmsley,    5    Har.    &   J.    27, 

9  Am.    Dec.   486 553 

Merchants'   Bank  v.  Bank,  10  Wall.   604, 

19  L.   Ed.   1008 569 

tMerchants*   Ins.    Co.   v.    Buckner,   39   C. 

C.    A.    19,   98    Fed.    222 327 

Merriam  v.  Cunningham,  11  Gush.  40,  43  168 
Merrifleld    v.    Worcester,    110    Mass.    216, 

219,    14  Am.    Rep.    592 469 

Merriman   v.    Machine    Co.,   86   WIs.    142, 

56   N.    W.   743 680 

Merritt  v.  Brinkerhoff,  17  Johns.  306,  320, 

8  Am.   Dec.   404 439 

tMerritt  v.   Earle,   29  N.   Y.   115,  86  Am. 

Dec.  292   138 

Merryweather  v.    Nixan,   8  Term  R.   186 

174,   176 
Messerger    v.    Deunie.    141    Mass.    335,    5 

N.    E.    283 675 


Page 

tMesser  T.   Smyth,    69  N.    H.    41 656 

tMessinger's   Appeal,    109   Pa.   285,   4  Atl. 

162    440 

tMessman  v.    Ihlenfeldt,   89   Wis.   585,    62 

N.  W.  522 266,   274 

tMetropolitan    Ins.    Co.    v.    Miller    (Ky.) 

71    S.    W.    921 266 

tMetzger   v.    Hochreln,    107   Wis.    267,    83 

N.    W.    308,    50    L.    R.    A.    305,    81   Am. 

St.   Rep.  841 6 

Michell  v.  Williams,   11  Mees.   &  W.   205  276 
tMiddleton    v.    Nichols,    62    N.    J.    Law, 

636,    43  Atl.   575 553 

Mielenz    v.    Quasdorf,    68    Iowa,    726,    28 

N.    W.    41 344 

tMiles  v.   Walker    (Neb.)   92  N.   W.   1014 

269,  274 
Miller    v.    Adams,    7    Lans.    133;     62    N. 

Y.    409 245 

Miller  T.   Baker,  1  Mete.   (Mass.)   27 492 

tMlller  T.  Fano,  134  Cal.  103,  66  Pac.  183 

181,  252,  255 

Miller  v.  Fawdry,   Latch,   120 392 

tMiller  v.  Foley,  28  Barb.  630 248 

Miller    v.    Laubach,    47    Pa.    154,   86   Am. 

Dec.    521    434 

tMiller  T.   Maxwell,  16  Wend.  9 383 

tMiller    v.    Mayor,    etc.,    109    U.    S.    385, 

3   Sup.    Ct.   228,    27  L.    Ed.   971 474 

Miller  v.  Miller,  8  Johns.  74,  77 303 

tMiller  v.   Railroad  Co.    (C.   C.)   41  Fed. 

898    269 

Milliken  v.   Thorndike,  103   Mass.  382....  643 
tMills  v.  Armstrong,  L.  R.  13  App.  Cas. 

1    596 

Mills  v.   Brooklyn,    32   N.    Y.   489 540 

tMills  v.   Wooters,   59  111.   234 203 

tMillspaugh  v.   Mitchell,   8  Barb.   333 618 

t  Milwaukee    Brick    Co.    v.     Schoknecht, 

108  Wis.   457,   84   N.   W.    838 656 

tMilwaukee,   etc.,   R.   Co.   v.   Kellogg,   94 

U.   S.   469,  24  L.   Ed.   256 83,  100 

tMing  v.  Woolfolk,  116  U.  S.  599,  6  Sup. 

Ct.   489,    29   L.    Ed.    740 74,  674 

Mining  Co.  v.  Smith,  L.  R.  4  H.  L.  64,  79  634 
tMinneapolis    Mill    Co.    v.    Wheeler,    31 

Minn.   121,   16  N.   W.   698 178 

tMinora  v.    Leeford,    Cro.   Jac.   114 311 

tMissourl    Pac.    R.    Co.    v.    Columbia,    65 

Kan.  390,  69  Pac.  338,  58  L.  R.  A.  399.. 

78,  82,  100 
fMissourl  Pac.  R.  Co.  v.   Keys,   55  Kan. 

205,  40  Pac.  275,  49  Am.  St.  Rep.  249...  435 
tMitchell  v.  Bradstreet  Co.,  116  Mo.  226, 

22  &    W.   358,   724,   20  L.   R.   A.   138,   38 

Am.   St.  Rep.  592 369 

Mitchell  v.  Clapp,  12  Cush.  278 677 

tMitchell  T.  Crassweller,  13  C.  B.  237 606 

tMitchell   V.   Logan,    172   Pa.   349,    33  Atl. 

554    269 

tMitchell  v.  Mayor,  etc.,  of  Rome,  49  Ga. 

19,  15  Am.   Rep.  669 51 

Mitchell  T.  Railroad  Co.  75  Ga.  398.. ..283,  286 
Mitchell  T.  State,  12  Ark.  60,  44  Am.  Dec. 

253    264 

Mitchell  v.  Wall,  111  Mass.  492 266 

tM.   Moxham,  The,  1  P.   D.  107,  111 678 

tMoellering    v.    Evans,    121    Ind.    195,    22 

N.  E.  989,  6  L.  R.  A.  449 50,  51 

Moens  T.  Hey  worth,  10  Mees.  &  W.  167..  631 


CASES  CITED. 


Page 
Mogul  Case.  28  Q.  B.  D.  598;  (1892)  A.  C. 

25    300 

Mogul  Steamship  Co.  v.  McGregor  (1892) 

A.   C.   25;   21  Q.    B.   Dlv.   544,   23  Q.   B. 

Div.    598   296 

tMogul    Steamship   Co.   v.    McGregor,    L. 

R.  23  Q.  B.  D.  598,  614,  (1892)  A.  C.  25.. 

71,  116 
fMonaghan  v.  Cox,   155  Mass.   487,  80  N. 

E.  467,  31  Am.   St.   Rep.   555 275 

tMonnler  v.  Railroad  Co.,  175  N.  Y.  281, 

67  N.   E.  569,  62  L.  R.   A.  357 209 

fMonongahela  City  v.  Fischer,  111  Pa.  9, 

2  All.  87,  56  Am.  Rep.  241 569 

fMonson  v.   Lathrop,   96  Wis.   386,  71  N. 

W.  .596,   65  Am.   St    Rep.  54 344 

Monteflorl  v.   Monteflori,  1  W.   Bl.  363.. 23,  25 
tMontreal  River  Lumber  Co.  v.  Mihills, 

80  Wls.  540,  50  N.  W.  507 644 

tMoody  v.  Baker,  5  Cow.  351 327 

tMoody  v.   Burton,    27    Me.    427,    46   Am. 

Dec.   612   20 

tMoody  v.  Mfg.  Co.,  159  Mass.  70,  34  N.  E. 

185,   38  Am.    St.   Rep.   396 622 

tMoody  v.   Sup'rs,  46  Barb.   659 482 

Mooney   v.    Miller,   102   Mass.    220 660 

tMooney  v.   Miller,   102  Mass.   217 654 

Moore  v.  Bank,  4  N.  Y.   Supp.  378 376 

tMoore  v.  Richardson,  68  N.  J.  Law,  305, 

53  Atl.   1032    141 

Moore  v.    Stevenson,   27  Conn.    14 70 

tMoore  y.  Stevenson,  27  Conn.  14 112 

tMoran    v.    Dunphy,    177    Mass.    485,    487, 

59  N.   E.   125,   52  L.   R.  A.   115,   83  Am. 

St.    Rep.    289 116,117 

tMorasse  v.    Brochu,    151   Mass.    567,   575, 

25  N.  E.  74,  8  L.  R.  A.  524,  21  Am.  St. 

Rep.   474   318 

tMore  v.    Perry,   61   Mo.   174 400 

tMorey  v.  Fitzgerald,  56  Vt.  487,  48  Am. 

Rep.  811  411 

tMorgan  v.  Andrews,  107  Mich.  33,  64  N. 

W.    869    117 

Morgan  v.  Hallowell,  57  Me.  377 13 

Morgan  v.  Hughes,  2  Term.  R.  225,  232..  276 
Morgan  v.  Lingen,  8  Law  T.  (N.  S.)  SCO.. 

333.  334 
tMorgan  T.  O'Daniel  (Ky.)  53  S.  W.  1040  121 

Morgan  V.   Skiddy,   62  N.  Y.   319 667,  671 

fMorgan  v.  Skiddy,  62  N.  Y.  319 669,  674 

Morgan  v.  Varick,  8  Wend.  587,  594.. .492,  494 
tMorley   v.    Chase,    143   Mass.    396,    9    N. 

E.   767    252 

Morris  v.  Langdale,  2  Bos.  &  P.  284 110 

tMorris  v.  Platt,  32  Conn.  75 130 

Morris  v.  Railroad  Co.,  65  Iowa,   727,  23 

N.  W.  143,  54  Am.   Rep.  39 683 

tMorris  v.   Railroad  Co.,  65  Iowa,  727,  23 

N.  W.   143,   54  Am.   Rep.  39;   148  N.   Y. 

182,   42  N.   E.  579 600,  684 

Morrison  T.  Belcher,  3  F.  &.  F.  614.  620..    70 

1  Morrison  v.  Railroad  Co.,  67  Me.  353 494 

Morse   v.    Crawford,   17   Vt.    499,   44  Am. 

Dec.    349    125,127 

tMorton  v.   New  York.   140  N.   Y.   207,  35 

N.   E.   490,   22  L.   R.   A.   241 474 

Morton  v.  Young,  55  Me.  24,  92  Am.  Dec. 

565    278 

Mostyn    v.    Fabrigas,    Cowp.    161 681 

Mott  v.   Ice  Co.,   73  N.   Y.  543 226 

tMott  V.  Ice  Co.,  73  N.  Y.  543 606 


Page 
tMoulton  T.  Beecher,  1  Abb.  N.  C.  193..  280 

JMoiAton  v.  Water  Co.,  137  Mass.  163 440 

Mount  v.  Derick,  5  Hill  (N.  Y.)  455 522 

Mount  Morris  Square,  etc.,  In  re,  2  Hill, 

14,  21,  22 537 

tMowry  v.  Chase,  100  Mass.  79 220 

Mowry  v.  Smith,  9  Allen,  67 206 

Moyle  v.  Drake,  141  Mass.  238,  242,  6  N. 

E.  520  279 

tMoyle  v.  Drake,  141  Mass.  238,  6  N.  E. 

520  277 

tMoynihan  v.  Hills  Co.,  146  Mass.  586, 

593,  16  N.  E.  574,  4  Am.  St.  Rep.  348...  614 
tMuench  v.  Heinemann  (Wis.)  96  N.  W. 

800  557 

tMuetze  v.  Tuteur,  77  Wis.  236,  46  N.  W. 

123,  9  L.  R.  A.  86,  20  Am.  St.  Rep.  115  344 
tMuggridge  v.  Eveleth,  9  Mete.  (Mass.) 

233  .  495 

Muldoon  v.  Rickey,  103  Pa.  110,  49  Am. 

Rep.  117  283 

tMuldoon  v.  Rickey,  103  Pa.  110,  49  Am. 

Rep.  117  284 

tMullen  v.  Brown,  138  Mass.  114 237 

Muller  v.  McKesson,  10  Hun,  44 4S3 

Mulligan  v.  Ellas,  12  Abb.  Prao.  (N.  S.) 

259  423 

Munger  v.  Hess,  28  Barb.  75 123,  166 

Munn  v.  Illinois,  94  U.  S.  113-134,  24  L. 

Ed.  77  471 

Munns  v.  Dupont  de  Nemours,  3  Wash. 

C.  C.  37,  Fed  Gas.  No.  9,926 268,  271 

tMunns  v.  Dupont  de  Nemours,  3  Wash. 

C.  C.  37,  Fed.  Cas.  No.  9,926 269 

tMunster  v.  Lamb,  11  Q.  B.  D.  588 379 

tMurphy  v.  Deane,  101  Mass.  455,  3  Am. 

Rep.  390  569 

tMurphy  v.  .Fond  du  Lac,  23  Wis.  365, 

99  Am.  Dec.  181 44 

tMurphy  v.  Kron,  20  Abb.  N.  C.  259 249 

Murphy  v.  Martin,  58  Wis.  276,  16  N. 

W.  603 264 

tMurphy  v.  Moore  (Pa.)  11  Atl.  665 280 

tMurphy  v.  Railroad  Co.,  73  Conn.  249,  47 

Atl.  120  5S8 

tMurphy  T.  Walters,  34  Mich.  180 234 

tMurray  v.  Boyne,  42  Mo.  472 205 

Murray  v.  Burling,  10  Johns.  172 519 

tMurray  v.  Ice  Co.,  180  Mass.  165,  61  N. 

E.  1001  100,596 

Murray  v.  Lovejoy,  2  Cliff.  191,  195,  Fed. 

Cas.  No.  9,963 184 

Murray  v.  Railroad  Co.,  93  N.  C.  92 575 

Myers  v.  Gemmel,  10  Barb.  537 6 

Myers  v.  Malcolm,  6  Hill,  292,  41  Am. 

Dec.   744   56,451 

Nagel  v.  Railroad  Co.,  75  Mo.  653,  42  Am. 

Rep.    418    138 

Napier  v.   Bulwinkle,   5   Rich.   Law,   3i_, 

324    49 

tNarehood  v.  Wllhelm,  69  Pa.  64 402 

tNash  v.  Insurance  Co.,  159  Mass.  437,  34 

N.  E.  625;  163  Mass.  574,  40  N.  E.  1039, 

28  L.  R.  A.  753,  47  Am.  St.  Rep.  489.. 644,  669 
Nash  v.  Jewett,  61  Vt.  501,  18  Atl.  47,  4 

L.  R.  A.  561,  15  Am.  St.  Rep.  931 168 

Nash   v.   Trust  Co.,  159   Mass.   439,  34  N. 

E.   625    655 

Id.,  163  Mass.  574,  40  N.  E.  1039, 
28  L.  R.  A.  753,  47  Am.  St.  Rep. 
489  655 


CASES  CITED. 


xliii 


Page 
fNatlonal  Bank  of  Commerce  T.  Baker, 

77  Md.  462,  26  Atl.  867 226 

fNational  Protective  Ass'n  v.  Gumming', 

170  N.  Y.   315,   63   N.   E.  369,  379,  58  L. 

R.  A.  135,  88  Am.  St.  Rep.  648 300 

fNaulty  v.  Bulletin  Co.,  206  Pa.  128,  55 

Atl.  862  383 

Neal  v.  Gillett,  23  Conn.  437 164 

fNeal  T.  Gillett,  23  Conn.  437 164 

fNeal  v.  Joyner,  89  N.  C.  287 255 

Neal  v.  Lewis,  2  Bay,  204 306 

Nebenzahl  v.  Townsend,  61  How.  Prac. 

353,  356  264 

tNecker  v.  Bated,  118  Iowa,  545,  92  N. 

W.  667  274 

fNeedham  v.  King,  95  Mich.  303,  54  N.  W. 

891  83 

Needham  v.  Railway,  38  Vt.  294 677 

fNelson  v.  Borchenius,  52  111.  236 327 

JNelson  v.  Cook,  17  111.  443 178 

tNesbit  v.  Garner,  75  Iowa,  314,  39  N. 

W.  516,  1  L.  R.  A.  152,  9  Am.  St.  Rep. 

486  596 

Nettleton  v.  Sikes,  8  Mete.  (Mass.)  34...  406 
fNeufeld  v.  Rodeminskl,  144  111.  83,  82 

N.  E.  913  274 

tNeun  v.  Railroad  Co.,  165  N.  Y.  146,  58 

N.  E.  876  582 

Newbery  v.  Garland,  31  Barb.  121 667 

Newkirk  v.  Sabler,  9  Barb.  652 409 

fNewman  v.  Fowler,  37  N.  J.  Law,  89 170 

tNewmaii  v.  Jenne,  47  Me.  520 516 

tNewman  v.  Railroad  Co.,  54  Hun,  335,  7 

N.  Y.  Supp.  560  255 

Newman  v.  Zachary,  Aleyn,  3 112 

tNew  Orleans,  M.  &  C.  R.  Co.  v.  Han- 

ning,  15  Wall.  649,  21  L.  Ed.  220 609 

tNew  York  v.  Lord,  18  Wend.  126 408 

tNew  York  Bldg.  Loan  Banking  Co.  v. 

Fisher,  23  App.  Div.  363,  48  N.  Y.  Supp. 

152  169 

tNew  York,  C.  &  St.  L.  R.  Co.  v.  Kistler, 

66  Ohio  St.  326,  64  N.  E.  130 596 

tNew  York  Land  Imp.  Co.  v.  Chapman, 

118  N.  Y.  288,  23  N.  E.  187 644 

tNew  York,  L.  E.  &  W.  R.  Co.  v.  Har- 

ing,  47  N.  J.  Law,  137,  54  Am.  Rep.  123  209 
New  York,  L.  E.  &  W.  R.  Co.  v.  Stein- 

brenner,  47  N.  J.  Law,  161,  54  Am.  Rep. 

126  593 

tNew  York,  L.  E.  &  W.  R.  Co.  v.  Win- 
ter's Adm'r,  143  U.  S.  60,  12  Sup.  Ct. 

356,  36  L.  Ed.  71 209 

tNew  York  Rubber  Co.  v.  Rothery,  132  N. 

Y.  298,  30  N.  E.  841,  28  Am.  St.  Rep.  575  43 
Neville  v.  Wilkinson,  1  Brown,  Ch.  Gas. 

543  15 

tNevin  v.  Car  Co.,  106  111.  222,  46  Am. 

Rep.  688 138 

tNicholls  v.  Bastard,  2  C.  M.  &  R.  659. .  512 
tNichols  v.  Boston,  98  Mass.  39,  93  Am. 

Dec.  132 463 

Nichols  v.  Nowling,  82  Ind.  488 176 

Nicholson  v.  Coghill,  4  Barn,  ft  C.  21,  6 

Dowl.  &  R.  12 276 

tNicholson  v.  Rust  (Ky.)  52  S.  W.  933....  827 
NJckleson  v.  Stryker,  10  Johns.  115,  8  Am. 

Dec.  318 652 

Nicklin  v.  Williams,  10  Exch.  259 49 

tNierenberg  v.  Wood,  59  N.  J.  Law,  112, 

35  Atl.  654 171 


Page 

tNiles  T.  Howe,  87  Vt.  888 680 

tNims  v.  Mt.  Hermon  School,  160  Mass. 

177,  35  N.  E.  776,  22  L.  R.  A.  364,  39  Am. 

.St.  Rep.  467 184 

fNitro-Glycerine  Case,  15  Wall.  524,  21  L. 

Ed.  206 130 

Xiven  v.  Munn,  13  Johns.  48 303 

tNoice  v.  Brown,  39  N.  J.  Law,  569 117 

tNolte  v.  Reichelm,  99111.  425 666 

tNonpareil  Cork  Mfg.  Co.  v.  Keasbey  & 

Mattison  Co.  (C.  C.)  108  Fed.  721 388 

Noonan  v.  Albany,  79  N.  Y.  475,  35  Am. 

Rep.  540 434 

tNoonan  v.  Traction  Co.,  64  N.  J.  Law, 

579,  46  Atl.  770 596 

tNorcross  v.  Otis  Bros.,  152  Pa.  481,  25 

Atl.  575,  34  Am.  St.  Rep.  669 292 

Norcross  v.  Thorns,  51  Me.  503,  81  Am. 

Dec.  588 481 

Norden  v.  Jones,  33  Wis.  600,  605,  14  Am. 

Rep.  782 140 

tNorfolk  &  W.  R.  Co.  v.  Nuckol's  Adm'r, 

91  Va.  193,  21  S.  E.  342 622 

tNorris  v.  Casel,  90  Ind.  143 205 

Northern  I.  R.  Co.  v.  Railroad  Co.,  15 

How.  233,  242,  251,  14  L.  Ed.  674 670 

fNorthern  Pac.  R.  Co.  v.  Babcock,  154 

U.  S.  190,  14  Sup.  Ct.  978,  38  L.  Ed.  958  678 
tNorthern  Pac.  R.  Co.  v.  Hambly,  154  U. 

S.  349,  14  Sup.  Ct.  983,  38  L.  Ed.  1009..  623 
tNorthern  Pac.  R.  Co.  v.  Herbert,  116  U. 

S.  642,  6  Sup.  Ct.  590,  29  L.  Ed.  755 614 

tNorthern  Pac.  R.  Co.  v.  Lewis,  51  Fed. 

658,  2  C.  C.  A.  446 83 

tNorthern  Pac.  R.  Co.  v.  Peterson,  162  U. 

S.  346,  16  Sup.  Ct.  843,  40  L.  Ed.  994 623 

tNorton  v.  Sewall,  106  Mass.  143,  8  Am. 

Rep.  298 162 

Nowel  v.  Smith,  Cro.  Eliz.  709 414 

Nowell  v.  Tripp,  61  Me.  426,  14  Am.  Rep. 

572  240 

tNoyes  v.  Boscawen,  64  N.  H.  361,  10  Atl. 

690,  10  Am.  St.  Rep.  410 596 

tNugent  v.  Railroad  Co.,  80  Me.  62,  73,  12 

Atl.  797,  6  Am.  St.  Rep.  151 138,  463 

fOates  v.  Railway  Co.,  '104  Mo.  514,  16  S. 

W.  487,  24  Am.  St.  Rep.  348 684 

Oazeaux  v.  Mali,  25  Barb.  578 667 

tObert  v.  Dunn,  140  Mo.  476,  41  S.  W.  901  50 

tO'Brien  v.  Bryant,  16  M.  &  W.  168 353 

tO'Brien  v.  Dredging  Co.,  53  N.  J.  Law, 

291,  21  Atl.  324 623 

tO'Brien  v.  Iron  Co.,  158  Ind.  218.  63  N. 

E.  302,  57  L.  R.  A.  508,  92  Am.  St.  Rep. 

305 69 

tO'Brien  v.  Steel  Co.,  158  Ind.  218,  63  N. 

E.  302,  57  L.  R.  A.  508,  92  Am.  St.  Rep. 

305  467 

tO'Brien  v.  McGlinchy,  68  Me.  552... 682,  584 
tOceanic  Nav.  Co.  v.  Compania,  134  N.  Y. 

461,  31  N.  E.  987,  30  Am.  St.  Rep.  685..  178 

tO'Connor  v.  Bucklln,  59  N.  H.  689 258 

Ogburn  v.  Connor,  46  Gal.  346,  13  Am. 

Rep.  213 432 

tOlmsted  v.  Brown,  12  Barb.  657 327 

Olmsted  v.  Miller,  1  Wend.  506 323 

tOlson  v.  Orton,  28  Minn.  36,  8  N.  W.  878  6C6 
Onslow  v.  Home,  3  \Vils.  177,  186.  .318,  320,  332 
Orange  Bank  v.  Brown,  3  Wend.  161,  1C2  ]47 
tOrdway  v.  Ferrin,  3  N.  H.  69 402 


xliv 


CASES  CITED. 


Page 
tO'Reilly  v.  Railroad  Co.,  16  R.  I.  388,  17 

Atl.   171,   19   Atl.    244,   5  L.    R.   A.   364,   6 

L.  R.  A.  719 683 

Ormsby  v.  Douglass,  37  N.  Y.  477 367 

tO'Rourke  v.  Publishing  Co.,  89  Me.  310, 

36  Atl.  398 373 

Osborne  v.  Sture,  3  Salk.  182 409 

Osgood  v.  Carver,  43  Conn.  24,  30 621 

tOsler  v.  Walton,  67  N.  J.  Law,  63.'  60 

Atl.  590 205 

Otis  v.  Jones,  21  Wend.  394 123 

tOverton  v.  Freeman,  11  C.  B.  867 609 

tOwen  v.  Publishing  Co.,  32  App.  Div. 

465,  53  N.  T.  Supp.  1033 844 

tPaciflc  Exp.  Co.  v.  Shearer,  160  111.  215, 

43  N.  E.  816,  37  L.  R.  A.  177,  52  Am.  St. 

Rep.  324 504 

Pack  v.  Mayor,  8  N.  Y.  222 607,  608 

Packard  v.  Getman,  4  Wend.  615,  21  Am. 

Dec.  168 501 

Paddock  v.  Fletcher,  42  Vt.  389 671 

Padgett  v.  Sweeting,  65  Md.  404,  4  Atl. 

887  357 

fPage  v.  Banking  Co.,  Ill  Ga.  73,  36  S.  E. 

418,  51  L.  R.  A.  463,  78  Am.  St.  Rep.  144  277 

Page  v.  Bent,  2  Mete.  (Mass.)  371 643 

Page  v.  Gushing,  38  Me.  523 268 

tPage  v.  Gushing,  38  Me.  523 292 

Page  v.  Olcott,  13  N.  H.  399 415 

tPage  v.  Parker,  43  N.  H.  363,  80  Am.  Dec. 

172  656 

tPallet  v.  Sargent,  36  N.  H.  496 352 

tPalmer  v.  Bell,  85  Me.  352,  27  Atl.  250...  648 

Palmer  v.  Fleshees,  1  Sid.  167 45 

Palmer  v.  Jarmain,  2  Mees.  &  W.  282 498 

tPalmer  v.  Mahin,  67  C.  C.  A.  41,  120 

Fed.  737 331 

Palmer  v.  Shipping  Co.  (1894)  A.  C.  318...  176 
tPalmerl  v.  Railroad  Co.,  133  N.  Y.  261, 

30  N.  E.  1001,  16  L.  R.  A.  136,  28  Am. 

St.  Rep.  632 226,  606 

Panton  v.  Holland,  17  Johns.  92,  8  Am. 

Dec.  369 48 

tPanton^v.  People,  114  111.  505,  2  N.  E. 

411  200 

tPaolino  v.  McKendall  (R.  I.)  53  Atl.  268, 

60  L.  R.  A.  133 577 

Paris  v.  Levy,  2  F.  &  F.  71,  74;  9  C.  B. 

(N.  S.)  342,  350 70 

Parker  v.  Barnard,  135  Mass.  116,  46  Am. 

Rep.  450 659 

Barker  v.  Barnard,  135  Mass.  116,  46  Am. 

Rep.  450 32 

tParker  v.  Cohoes,  10  Hun,  531;  74  N.  Y. 

610 109 

Parker  v.  Farley,  10  Cush.  279 276 

Parker  v.  Foote,  19  Wend.  309 4,  6 

tParker  v.  Griswold,  17  Conn.  288,  303,  42 

Am.  Dec.  739 43,  44 

Parker  v.  Huntington,  2  Gray,  124 295 

Parker  v.  Langly,  10  Mod.  209 288 

Parker  v.  Mise,  27  Ala.  480,  62  Am.  Dec. 

776  489 

Parker  v.  Mitchell,  11  Adol.  &  E.  788 424 

Parker  v.  Walrod,  13  Wend.  296 492 

Parker  v.  Woollen  Co.,  2  Black,  545,  551, 

17  L.  Ed.  333 422 

Parks  v.  Newburyport,  10  Gray,  28 432 

Parmiter  v.  Coupland,  6  Mees.  &  W.  105..  330 
Parry  v.  Smith,  L.  R.  4  C.  P.  D.  325 163 


Page 

Parsons  v.  Loyd,  8  Wilt.  841 23(3 

Partridge  v.  Scott,  3  M.  &  W.  220.... 47,  53 
Pasley  v.  Freeman,  2  Smith,  Lead.  Cas. 

94;     2    Smith,    Lead.    Cas.    (9th    Amer. 

Ed.)  1320,  3  Term    R.  51 

17,  629,  632,  633,  637,  672,  674 

Pater  v.  Baker,  3  Man.  G.  &  S.  868 384 

Patrick  v.  Colerick,  3  Mees.  &  W.  483..  405 
tPatterson  v.  Nutter,  78  Me.  509,  7  Atl. 

273,  57  Am.   Rep.  818 212 

Patterson  v.  Railroad  Co.,  76  Pa.  389,  18 

Am.    Rep.   412 616 

tPatterson    v.    Wilkinson,    65   Me.    42,    92 

Am.    Dec.    568 382 

Pattison  v.  Jones,  8  Barn.  &  C.  585 356 

tPaul  v.  Fargo,  84  App.  Div.  9,  82  N.  Y. 

Supp.  369 284 

tPaul  V.  Hadley,  23  Barb.   521 648 

tPaul  v.  Summerhays,  4  Q.  B.  D.  9 389 

Paull  v.  Halferty,  63  Pa.  46,  3  Am.  Rep. 

518  386,  387 

tPaull  v.  Halferty,   63  Pa.  46,  50,  3  Am. 

Rep.    618 112,  385 

Payne  v.  Britton,  6  Rand.  (Va.)  101 681 

Pease  v.  Smith,  5  Lans.  519 122 

tPease  v.  Smith,  61  N.  Y.  477,  480,  481.... 

508,  516,  518 

Peck  v.  Elder,  3  Sandf.  126,  129 421,  481 

tPeck  v.  Goodberlett,  109  N.  Y.  180,  16  N. 

E.  350 435 

tPeck  v.  Herrington,  109  111.  611,  50  Am. 

Rep.    627 435 

tPeck  v.  Railroad  Co.,  50  Conn.  379 596 

Peek   v.    Derry,    37   Ch.    Div.    541,    L.    R. 

14   App.    Cas.    337 671 

tPeek  v.  Gurney,  L.  R.  6  H.  L.  377....  672 
Pennsylvania  v.  Bridge  Co.,  18  How. 

421,    15    L.    Ed.    435 474 

fPennsylvania  Co.  v.  Roney,  89  Ind.  453, 

46   Am.    Rep.    173 600 

Pennsylvania  Co.  v.  Whltlock,  99  Ind.  16, 

50  Am.   Rep.  71 97,   99 

tPennsylvania  R.  Co.  v.  Angel,  41  N.  J. 

Eq.   316,   7  Atl.    432,   56  Am.    Rep.   1 474 

tPennsylvania  R.   Co.   v.   Goodenough,   55 

N.  J.  Law,  677,  28  Atl.  3,  22  L.  R.  A. 

460    696 

tPenny    v.    Wimbledon    Council    (1899)    2 

Q.   B.   72 610 

Penruddock'a   Case,   6  Coke,   lOOb,    lOla.. 

461,    462,   476 

tPeople  v.  Adler,  3  Parker,  Cr.  R.  249...  260 
tPeople  v.  Bartels,  138  111.  322,  27  N.  E. 

1091    542 

tPeople  v.   Board,   140  N.  Y.  1,  35  N.   E. 

320,  37  Am.  St.  Rep.  522,  156  N.  Y.  59, 

50  N.   E.  432 36,  477 

tPeople  v.    Com'rs,    149   N.   Y.   26,   43  N. 

E.   418   542 

People  v.  Crosswell,  3  Johns.  Cas.  337..  347 
People  v.  Croswell,  3  Johns.  Cas.  354...  333 
tPeople  v.  Dann,  53  Mich.  490,  19  N.  W. 

159,  51  Am.   Rep.  151 200 

People   v.   Hicks,   15  Barb.   153 228 

tPeople  v.   Johnson,   86  Mich.   175,   48  N. 

W.    870,    13    L.    R.    A.    163,    24    Am.    St. 

Rep.   116;    139   N.   Y.   358,   34  N.   E.   920 

200,  258 
People  v.  Kendall,  25  Wend.  399,  37  Am. 

Dec.  240  166 


CASES  CITED. 


xlv 


Page 
People  Y.  Lllley,  43  Mich.  621,  625.  B  N. 

W.  982  186 

tPeople  v.  Lllley,  43  Mich.  521,  6  N. 

W.  982  187,  189 

People  y.  Mayor,  etc.,  2  Hill,  9,  11 537 

tPeople  v.  Railroad  Co.,  74  N.  Y.  302 36 

People  v.  Sands,  1  Johns.  78,  3  Am.  Deo. 

296  451,  462 

tPeople  v.  Severance,  125  Mich.  556,  84 

N.    W.    1088,    51   L.    R.    A.    461,    84   Am. 

St.  Rep.  CS1 479 

People  v.  Sup'rs.,  1  Hill,  195;  15  Wend. 

198  537 

People  T.  Warren 647 

tPeople  T.  White  Lead  Works,  82  Mich. 

471,  46  N.  W.  735,  9  L.  R.  A.  722 425 

tPeoples  v.  Evening  News,  51  Mich.  11, 

16  N.  W.  185,  691 354 

tPercival  v.  Chase,  182  Mass.  371,  65  N. 

E.  800  400 

Percival  v.  Hickey,  18  Johns.  257,  285, 

9  Am.  Dec.  210 120,  391 

Perkins  y.  Mitchell,  31  Barb.  465 334 

tPerkins  v.  Mossman,  44  N.  J.  Law,  579  4S8 
t Perkins  v.  Pendleton,  90  Me.  166,  38  Atl. 

96,  60  Am.  St.  Rep.  252 117 

Perley  v.  Georgetown,  7  Gray,  464 183 

Perley  v.  Railroad  Co.,  98  Mass.  414,  96 

Am.  Dec.  645 77 

fPerley  v.  Railroad  Co.,  98  Mass.  414, 

96  Am.  Dec.  645 79 

t  Perry  v.  Bailey,  94  Me.  50,  46  Atl.  789  401 

Perry  y.  Man,  1  R.  I.  263 350 

tPerry  v.  Porter,  124  Mass.  338 351 

t  Perry  v.  Rogers,  62  Neb.  898,  87  N. 

W.  1063  666 

Perry  v.  Sulier,  92  Mich.  72,  52  N.  W.  801  254 
tPerry  v.  Sulier,  92  Mich.  72,  52  N.  W. 

788  274 

tPeters  v.  Bowman,  115  Cal.  345,  47  Pac. 

113,  598,  56  Am.  St.  Rep.  106 14 

Peters  v.  Johnson,  50  W.  Va.  644,  41 

S.   B.   190,  57  L.   R.  A.  428,   88  Am.   St. 

Rep.  909  162 

Peterson  v.  Haffner,  59  Ind.  130,  26  Am. 

Rep.  81  185 

tPeterson  T.  Haffner,  59  Ind.  130,  26  Am. 

Rep.  81  164 

tPeterson  v.  Telegraph  Co.,  72  Minn.  41, 

74  N.   W.   1022,   40  L.  R.   A.  661,  71  Am. 

St.  Rep.  461 344 

Petsch  v.  Printing  Co.,  40  Minn.  291, 

41  N.  W.  1034 383 

tPettibone  v.  Simpson,  66  Barb.  492 327 

Pettigrew  v.  Evansvllle,  25  Wis.  223,  3 

Am.  Rep.  50 432 

t  Peyton  v.  Railroad  Co.,  41  La.  Ann. 

861,  6  South.  690,  17  Am.  St.  Rep.  430  600 
tPhelps  v.  Church  of  Our  Lady,  40  C. 

C.  A.  72,  99  Fed.  683;    53  C.   C.  A.  407, 

115  Fed.  883 141 

tPhelps  v.  Nowlen,  72  N.  Y.  39,  28  Am. 

Rep.  93  6,  60,  433 

tPhiladelphla,  W.  &  B.  R.  Co.  v.  Hoge- 

land,    66    Md.    149,    7   Atl.    105,    59    Am. 

Rep.  159  596 

tPhiladelphia,  W.  &  B.  R.  Co.  v.  Rice, 

64  Md.  63,  21  Atl.  97 209 

tPhiladelphia  &  R.  R.  Co.  y.  Derby,  14 

How.  468,  14  L.  Ed.  502 138,  606 

Philips  v.  Biggs,  Hardr.  164 176 


Page 
fPhillips   T.    Corell,    79  Hun,    MO,    29   N. 

Y.    Supp.   613 397 

Phillips  v.   Eyre,   L.  R.  4  Q.   B.  225,  239, 

L.   R.   6  Q.   B.  1 675,  677 

tPhillips  v.    Eyre,   L.   R.    6  Q.   B.   1,   28, 

29    678 

Phillips    v.    Hall,    8    Wend.    610,    613,    24 

Am.    Dec.   108 492,   494 

Phillips  v.   Jansen,  2  Esp.    624 341 

tPhillips  v.    Library  Co.,   55  N.   J.   Law, 

307,   27   Atl.    478 557 

Phythian  T.  White,  1  Mees.   &  W.  216...  398 

Pickard  v.  Collins,   23  Barb.   444 451 

tPickerlng  v.  James,  L.   R.  8  C.  P.  489..    32 

Pierce  v.   Street,  3  Barn.  &  Adol.  397 276 

Plerson   v.    Glean,   14  N.   J.   Law,   37,   25 

Am.    Dec.   497 462 

tPike  v.  Honsinger,  155  N.  Y.  201,  49  N. 

E.   760,   63   Am.    St.    Rep.    655 138 

tPike   v.    Megoun,    44    Mo.    491 53,"> 

t  Pillow  v.   Bushnell,   5  Barb.   156 196 

Piper  v.   Hoard,   107  N.    Y.   73,   76,   13  N. 

E.  626,  629,  1  Am.  St.  Rep.  789.... 22,  23,  25 
Piper   v.    Pearson,    2   Gray,    120,    61   Am. 

Dec.    438    236 

fPiper  v.    Pearson,   2   Gray,   120,   61  Am. 

Dec.    438    535 

Pitts  v.  Lancaster  Mills,  13  Mete.  (Mass.) 

156    439 

tPittsburg,    etc.,   R.    Co.   T.   Gilleland,   56 

Pa.   445,  94  Am.  Dec.  98 84 

tPittsburgh,  C.  &  St.  L.  R.  Co.  v.  Lyon, 

123  Pa.  140,  16  Atl.  607,  2  L.  R.  A.  489, 

10  Am.   St.    Rep.   517 209 

Pixley   v.    Clark,    35    N.    Y.   523,   91   Am. 

Dec.  72   451 

tPlant    v.    Woods,    176    Mass.    492,    57    N. 

E.    1011,    51   L.    R.    A.    339,    9   Am.    St. 

Rep.    330    300 

Platt  v.    Johnson,    15  Johns.   213,   8  Am. 

Dec.   233   65 

Pleasants    v.    Fant,   22   Wall.    121,    22   L. 

Ed.   780   569 

Plumer  v.   Harper,   3   N.   H.   92,   14  Am. 

Dec.    333    458 

Plumer  v.  Robertson,  6  Serg.  &  R.  179..  553 
tPlummer   v.    State,   135   Ind.   308,    34   N. 

E.    968   258 

Plummer  v.  Webb,  1  Ware,  79,  Fed.  Cas. 

No.    11,234    624 

Pocock  v.  Moore,  Ryan  &  Moody,  321 221 

Poe  v.   Monford,   Cros.   Eliz.   620 320 

fPoeppers   v.    Railroad    Co.,    67   Mo.    715, 

29  Am.  Rep.  518 79 

Pointer   v.    Gill,    2   Rolle,    Abr.   140 421 

tPokrok  Pub.   Co.  v.  Ziskovsky,  42  Neb. 

64,   60  N.   W.   358 351 

Polhlll   v.    Walter,   3   Barn.    &   Adol.   114 

630,    631 
Polkinhorn  y.   Wright,   8  Q.    B.    (N.    S.) 

197    202 

Pollard   y.    Lyon,   91   U.    S.    225 387 

tPollard   y.    Lyon,    91   U.    S.    225,,  237,    23 

L.   Ed.    308 304,   327 

tPollard   y.    McKenney   (Neb.)    96  N.   W. 

679,   681   656 

tPollasky  y.   Mlnchener,   81  Mich.  280,  46 

N.   W.   5,    9   L.    R.   A.    102,    21  Am.    St. 

Rep.    516    368 

Pollett  v.  Long,   56  N.   Y.   200 90 

Pollitt  y.  Long,   58  Barb.   20 422 


xlvi 


CASES  CITED. 


Page 

fPollock  T.  Hastings,  88  Infl.  848 307 

Pollock  v.   Lester,  11  Hare,  266 419 

Pomfret    v.    Ricroft.    1    Saund.    321,    323, 

note,    3 392,    409 

fPomponlo    v.    Railroad    Co.,    66    Conn. 
528,   537,   34  Atl.    491,    32   L.    R.    A.    530, 

50  Am.    St.    Rep.   124 557 

tPonting  v.  Noakes  (1894)  2  Q.  B.  281...  9 
tPope  v.  Boyle,  98  Mo.  527,  11  S.  W.  1010  463 

Popplewell   v.    Pierce,   10  Gush.   509 677 

fPost  v.   Stockwell,  34  Hun,  373 172 

fPost  Pub.    Co.    v.    Hallam,    8   C.    C.   A. 

201,    59   Fed.    530 372 

Pothonier  v.  Dawson,  Holt,  N.  P.  383...  522 
fPotter  v.  Casterline,  41  N.  J.  Law,  22  277 
Potts  v.  Imlay,  4  N.  J.  Law,  330,  377, 

7  Am.  Dec.  603 282,  283,  286 

tPottstown   Gas   Co.    v.    Murphy,   39   Pa. 

257    **5 

Poucher  v.   Blanchard,  86  N.  Y.  256 238 

tPouilin  v.  Railroad  Co.    (C.   C.)  47  Fed. 

858    138 

fPowell  v.   Linde   Co.,   58   App.   Div.   261, 
68    N.    Y.    Supp.    1070,    affirmed    171   N. 

Y.   675,   64  N.   E.  1125 641 

tPowers,    In    re,    25    Vt.    261 260 

Pozzl  v.   Shipton,  8  Adol.    &  E.   963 136 

Pratt  v.    Bogardus,   49  Barb.    89 228 

Pratt   v.    Gardner,    2    Gush.    68,    48    Am. 

Dec.    652 529 

tPratt  v.    Gardner,   2   Gush.    63,    48   Am. 

Dec.    652 635 

tPrentice  v.  Geiger,  74  N.   Y.   341 442 

tPrentice  v.   Harrison,   4  Ad.   &  El.    (N. 

S.)    852 246 

Presbrey  v.   Railway,  103  Mass.   1,  6,  7..  470 

Preasey   v.   Wirth,   3   Allen,   191 677 

fPrewitt   v.    Garrett,    6  Ala.    128,    41  Am. 

Dec.   40   178 

Price  v.    Hewett,   8  Exch.    146 168 

fPrice    v.    Railroad    Co.,    50    N.    Y.    213, 

10   Am.    Rep.    475. 504 

tPrice  v.   Seeley,  10  Cl.   &  F.   28 .'.  260 

fPrice    v.    Water    Co., '  58    Kan.    551,    50 

Pac.   450,   62  Am.   St   Rep.   625 577 

Prideaux  v.  Bunnett,  1  C.  B.,  N.  S.  613  653 
Priestley  v.  Fowler,  3  Mees.  &  W.  1.  .153,  154 

tPrinie  v.   Cobb,   63  Me.  200 517 

fPringle  v.  Coal  Co.,  172  Pa.  438,  33  Atl. 

690    51 

fPrint  Works  v.  Lawrence,  23  N.  J.  Law, 

9;  23  N.  J.  Law,  590,  57  Am.  Dec.  420..  408 
tProctor  v.  Webster,  16  Q.  B.  Div.  112...  375 
tPrue  v.  Railroad  Co.,  18  R.  I.  360,  27 

Atl.    450    571 

tPrussak  v.   Hutton,  30  App.   Div.  66,  51 

N.   Y.   Supp.   761 452 

tPryse  v.  McGuire,  81  Ky.  608 666 

tPullman  Car  Co.  v.  Bluhm,  109  111.  20, 

50  Am.  Rep.   601 138 

tPullman  •  Palace   Car  Co.   v.    Laack,   143 

111.  242,  32  N.  E.  285,  18  L.  R.  A.  215...  78 
fPurcell  v.  Sowler,  L,  R.  2  C.  P.  D.  218. .  373 
fPursell  v.  Stover,  110  Pa.  43,  20  Atl.  403  407 

Putnam  v.  Payne,  13  Johns.  312 484 

Putnam  v.  Railroad  Co.,  55  N.  Y.  108,  14 

Am.    Rep.    190 90 

Putnam  v.  Wise,  1  Hill,  234,  240,  37  Am. 

Dec.  309    140 

Putnam   v.    Wyley,  8   Johns.   432,   5  Am. 
Dec.  346  495 


Page 

Quarman  r.  Burnett,  •  Mees.  ft  W.  499..  59C 
tQuimby  v.  Lowell,  89  Me.  547,  36  Atl. 

902  141 

Quincy  Canal  v.  Newcomb,  7  Mete. 

(Mass.)  276,  283,  39  Am.  Dec.  778 46i 

tQuinn  v.  Insurance  Co.,  116  Iowa,  522,  90 

N.  W.  849  331 

tQuinn  v.  Lsatham  (1901)  A.  C.  495,  510, 

535  71,  116 

tQuinn  v.  Leatham  (1901)  A.  C.  495,  509, 

510,  535  116,  117 

tQuinn  v.  O'Gara,  2  E.  D.  Smith,  388 327 

tQuinn  v.  Power,  87  N.  Y.  535,  41  Am. 

Rep.    392    606 

tRachmel  v.    Clark,   205  Pa.   314,   64  Atl. 

1027,  62  L.   R.  A.   959 577 

tRackliff    v.    Greenbush,    93    Me.    104,    44 

Atl.    375     35 

Radenhurst  v.  Coate,  6  Grant,  Ch.  140...  424 

Railroad  Co.  v.  Archer,  6  Paige,  83 422 

Railroad  Co.  v.  Blocher,  27  Md.  277,  287..  137 

Railroad  Co.  v.   Crudup,   63  Miss.   291 682 

Railroad  Co.  v.  Doyle,  60  Miss.  977 682 

Railroad  Co.  V.  Flagg,  43  111.  364,  92  Am. 

Dec.    133    207 

Railroad   Co.  v.    Gladmon,   15  Wall.    401, 

21  L.    Ed.   114 575 

Railroad  Co.  v.  Hickey,  166  U.  S.  521,  17 

Sup.   Ct.   661,   41  L.   Ed.   1101 96 

Railroad  Co.  v.  Hope,  80  Pa.  373,  21  Am. 

Rep.    100    77 

Railroad  Co.   v.  Hummell,  44  Pa.  378,  84 

Am.   Dec.  457   13 

tRailroad  Co.  v.  Jones,  111  Pa.  204,  2  Atl. 

410,  56  Am.   Rep.   260 467 

Railroad   Co.   v.    Keely's  Adm'r,   23  Ind.       J 

133    624 

Railroad  Co.  v.  Kellogg,  94  U.  S.  469,  24 

L.   Ed.   256   96 

Railroad  Co.  v.   Kerr,  62  Pa.   353,  1  Am. 

Rep.   431   76,  79 

Railroad   Co.    v.    Lewis,    24   Neb.    848,    40 

N.  W.  401,  2  L.   R.   A.   67 683 

Railroad  Co.  v.  Page,  22  Barb.  130 223 

Railroad  Co.  v.  Parks,  18  111.  460,  68  Am. 

Dec.   562   208 

Railroad   Co.   v.    Salmon,   39  N.   J.   Law, 

299    97 

tRailroad  Co.  v.  Schwindling,  101  Pa.  258, 

47  Am.   Rep.   706 14 

tRailroad  Co.  v.  Skillman,  39  Ohio  St.  444  209 
Railroad   v.    Sprayberry,   8   Baxt    341,  35 

Am.   Rep.   705 682 

Railroad   Co.    v.    Stout,   17   Wall.    657,   21 

L.    Ed.    745 573 

tRailroad  Co.  T.  Truman,  L.  R.  11  App. 

Cas.   45   474 

Railroad  Co.  v.  Yarwood,  15  111.  468 569 

Railway  Co.   v.   Broom,   6  Exch.   314,   326 

327    183,  184 

Railway  Co.   v.  Donahoc,  56  Tex.  162 184 

Railway  Co.   v.   Eininger,   114   111.   79,   29 

N.  E.  196 575 

tRaisler  v.   Oliver,  97  Ala.  710,  12  South. 

238,   38  Am.    St.   Rep.   213 543 

tRamsey  v.  Wallace,  100  N.  C.  75,  6  S.  E. 

638    642 

Randall   v.   Brigham,   7  Wall.   523,  19  L. 

Ed.   285   530 

Randall  v.   Cleaveland,   6  Conn.  328 398 


CASES  CITED. 


xlvii 


Page 

Randall  T.  Haselton,  12  Allen,  412 147 

t  Randall  v.  Hazelton,  12  Allen,  412,  414.. 

20,  296 
tRandlette  v.  Judkins,  77  Me.  114,  52  Am. 

Rep.    747 25 

tRankin  v.  Ekel,  64  Cal.  446,  1  Pac.  895..  545 

Rapson  v.   Cubitt,  9  Mees.  &  W.  710 153 

fRathke  v.   Gardner,   134  Mass.   14 435 

Ravenga  v.  Mackintosh,  2  Barn.  &  C.  693  273 

tRawley  v.   Brown,  18  Hun,   456 618 

Rawstron  v.  Taylor,  11  Exch.  309 433 

Ray  v.  Law,  Fed.  Gas.  No.  11,592 286 

tRaycroft  v.   Taynt,or,  68  Vt.  219,   223,   36 

Atl.    53,    33    L,    R.    A.    225,    54   Am.    St. 

Rep.   882    71,  117 

fRaymond  v.  Yarrington,  96  Tex.  443,  73 

S.    W.   800,   62  L.   R.   A.   962 117 

fRaymond    Syndicate    v.    Guttentag,    177 

Mass.  562,  59  N.   E.  446 512 

Rayne  v.   Taylor,   14  La.  Ann.  406 351 

tRaynsford  v.  Phelps,  43  Mich.  342,  5  N. 

W.   403,   38  Am.    Rep.   189 642 

tRead  v.   Society   (1902)   2  K.   B.  732,  738, 

739     116,  118,  300 

Read  v.  Nichols,  118  N.  Y.  224,  23  N.  E. 

468,   7   L.    R.    A.   130 96,  99 

tReade  v.  Sweetzer,  6  Abb.  Pr.  (N.  S.)  9  373 

Rearick  v.  Wilcox,  81  111.  77,  81 372 

tRedding  v.  Wright,  49  Minn.  322,  51  N. 

W.    1056    666 

Redman  v.  Redman,  1  Vern.  348 25 

Reg.  v.  Boden,  1  Car.  &  K.  395,  397 203 

Reg.  v.  Calllngwood,  2  Ld.  Raym.  1116...  112 
Reg.  v.  Cohen,  2  Denison,  Cr.  Gas.  249..  202 

Reg.  T.  Haines,  2  Car.   &  K.   368,  371 160 

Reg.  v.  Hemmings,  4  Fost.  &  F.  50 203 

Reg.   v.  James,  1  Car.  &  K.  530 187 

Reg.  v.   Mabel,   9  Car.   &  P.   474 257 

Reg.  v.  Parnell  (1881)  14  Cox,  C.  C.  508..  300 

Reg.  v.  Rodway,  9  Car.  &  P.  784 202 

Reg.  v.  St.  George,  9  Car.   &  P.  483 187 

Reg.  v.  Slowly,  12  Cox,  Crim.  Cas.  269....  202 
Reg.  v.   Swindall,  2  Car.   &  K.  232,  233..  160 

Reg.   v.   Thompson,   Leigh  &  C.   225 202 

Reg.   v.    Toohy,   2   Ld.    Raymond,  130 250 

Reid  v.   Gifford,   Hopk.   Ch.  416 422 

Reiper  v.   Nichols,   31  Hun,  491 96 

tReisert  v.   New  York,  174  N.  Y.  196,  66 

N.    E.    731    60 

tReock  v.  Newark,  33  N:  J.  Law,  129 36 

tReuck  v.  McGregor,  32  N.  J.  Law,  70...  252 

Revis  v.   Smith,  18  C.  B.  126 26 

Rex     .  Creevey,   1  Maule  &  S.  273 375 

Rex     .   Cross,  2  Car.   &  P.  483 472 

Rex     .  Harvey,  2  Barn.  &  C.  257 334 

Rex     .   Home,   Cowp.  684 381 

Rex    .  Huggins,  2  Ld.  Raym.  1583 395 

Rex     .   Milton,   Moody  &  M.   107 202 

Rex     .   Pappineau,  1  Strange,   686 481 

Rex     .  Pease,  4  Barn.  &  Adol.  30 470 

Rex      .   White,   1  Burrows,   337 421,  451 

Rex     .  Williams,  6  Car.   &  P.  390 202 

f  Reynolds  v.  Fitzpatrick  (Mont.)  72  Pac. 

510    511 

tReynolds   v.    Pierson,   29   Ind.    App.   273, 

64   N.    E.    4S4 87 

Reynolds  v.   Shuler,  5  Cow.  325 492 

tRhinehart  v.   Whitehead,   64  Wis.   42,  24 

N.   W.   401 181 

Rhodes  v.  Dunbar,  57  Pa.  274,  290,  98  Am. 

Dec.   221   98,  99 


Page 

tRloe  T.  Albee,  164  Mass.  88,  41  N.  B.  122  117 
Rice  v.   Boyer,  108  Ind.  472,  9  N.  E.  420, 

58  Am.  Rep.  53 168,  169 

Rice  v.    Coolidge,   121  Mass.   393,  23  Am. 

Rep.    279    378 

Rice  T.  Day,  34  Neb.  100,  51  N.  W.  464..  286 
tRlce  v.  Paper  Co.,  174  N.  Y.  385,  66  N. 

K.  979,  62  L.  R.  A.  611,  95  Am.  St.  Rep. 

585    617 

tRichardson  v.   Noble,  77  Me.  390 656 

Richardson  v.    Railroad,   25  Vt.   465,   471, 

60  Am.    Dec.   283 48,  49 

Richardson  T.  Railroad  Co.,  98  Mass.  85.. 

677,  682 
tRichardson  v.   Silvester,   L.   R.   9  Q.  B. 

34    , 669 

Rlchart   v.    Scott,    7   Watts,    460,    462,    32 

Am.     Dec.    779     48,  49 

tRlchmond     Traction     Co.     r.     Martin's 

Adm'x   (Va.)   45  S.   E.   886 569 

tRicker  v.  Freeman,  50  N.  H.  420,  9  Am. 

Rep.    267    87 

tRiddell  v.   Thayer,   127  Mass.   487 382 

tRiddle  y.  McGinnis,  22  W.  Va.  253 553 

fRideout  v.  Knox,  148  Mass.  368,  19  N.  E. 

390,  2  L.  R.  A.  81,  12  Am.  St.  Rep.  560      6 
tRider  v.   Kite,  61  N.  J.   Law,  8,  38  Atl. 

754   277 

tRider  v.  Railroad  Co.,  171  N.  Y.  139,  63 

N.  E.  836,  58  L.  R.  A.  125 672 

Rider  v.  White,  65  N.  Y.  54,  22  Am.  Rep. 

600 485 

Riding  v.  Smith,  1  Exch.  Dlv.  91 296 

tRidley  v.  Perry,  16  Me.  21 352 

Riford  v.  Montgomery,   7  Vt.  418 517 

Rigaut    v.    Gallisard,    7    Mod.    78,    2   Ld. 

Raym.  809 550 

tRiley  v.  Bell,  120  Iowa,  52,  95  N.  W.  170  666 

Rlley  v.  Water  Power  Co.,  11  Gush.  11 617 

tRing  v.  Cohoes,  77  N.  Y.  83,  33  Am.  Rep. 

574  100 

Ring  v.  Wheeler,  7  Cow.  725 378 

tRipley  v.   McBarron,  125  Mass.   272.  .263,  266 
Ripley  v.  Severance,  6  Pick.  474,  17 'Am. 

Dec.    397 18 

Risney  v.  Selby,  1  Salk.  211 73,  629 

tRitchie  v.  Waller,  63  Conn.  155,  28  Atl. 

29,  27  L.  R.  A.  161,  38  Am.  St.  Rep.  361  606 
Roath   v.    Driscoll,   20   Conn.   533,  52  Am. 

Rep.   352 59 

Robbins  v.   Mount,  4  Rob.   553 166 

fRobbins  v.  Robbins,  133  N.  Y.  697,  30  N. 

E.    977 277 

Roberts  T.  Clarke,  18  Law  T.  (N.  S.)  49..  420 

Roberts  T.  Johnson,  58  N.  Y.  613 170 

tRoberts  v.  Johnson,  68  N.  Y.  618 170 

tRoberts  T.  Roberts,  5  B.  &  S.  384 327 

tRoberts  v.  Rose,  4  H.  &  C.  103 482 

tRobertson  v.  Coal  Co.,  172  Pa.  566,  33  Atl. 

706  51 

Robinson  v.  Burleigh,  5  N.  H.  225 621 

Robinson  v.  Chamberlain,  34  N.  Y.  389,  90 

Am.    Dec.   713 539 

tRobinson  r.  Cone,  22  Vt.  214,  64  Am.  Dec. 

67  588 

tRobinson  v.  Jones,  4  L.  R.  Ir.  391 344 

Robinson  v.  State,  31  Tex.  170 187 

tRochester  v.  Anderson,  1  Bibb,  428 205 

tRoddy  v.  Railroad  Co.,  104  Mo.  234,  15  S. 

W.  1112,  12  L.  R.  A.  746,  24  Am.  St.  Rep. 

333   156 


xlviii 


CASES   CITED. 


Page 
tRodgert  T.  Lees.  140  Pa.  475,  21  Atl.  399, 

12  L.  R.  A.  216,  23  Am.  St.  Rep.  250.  .557.  577 
fRodgers  v.  Railroad  Co.,  67  Cal.  607,  8 

Pac.  377 84 

tRoe  v.  Campbell,  40  Hun,  49 123 

Roe  v.  Railway  Co.,  7  Exch.  36,  42,  43 184 

Roemer  v.  Striker,  142  N.  Y.  134,  36  N. 

E.  808 607 

Rogers  v.  Clifton,  3  Bos.  &  P.  587 356 

fRogers  v.  Cox,  66  N.  J.  Law,  432,  50  Atl. 

143  180 

fRogers  v.  Manufacturing  Co.,  144  Mass. 

198,  11  N.  E.  77,  59  Am.  Rep.  68 614 

Rogers  v.  Spence,  13  Mees.  &  W.  571,  581  202 

tRohan  v.  Sawin,  5  Gush.  281 255 

Root  v.  King,  7  Cow.  613,  632 351,  572 

Ross  v.  Butler,  19  N.  J.  Eq.  294,  97  Am. 

Dec.  654 423 

Ros&  v.  Johns,  5  Burr.  2825 519 

Ross  v.  Johnson,  5  Burrows,  2825 507 

Ross  v.  Norman,  5  Exch.  359 276 

Roswell  v.  Prior,  12  Mod.  635 462 

tRothmiller  v.  Stein,  143  N.  Y.  581,  591, 

38  N.  E.  718,  720,  721,  26  L.  R.  A.  148...  648 
Rounds  v.  Railroad  Co.,  64  N.  Y.  129,  21 

Am.  Rep.  597 226 

tRousey  v.  Wood,  47  Mo.  App.  465 547 

Roussin  v.  Benton,  6  Mo.  592 398 

tRowell  T.  Chase,  61  N.  H.  135 642,  G44 

fRowen  v.  Railroad  Co.,  59  Conn.  364,  21 

A.  1073 569 

Rowland's  Case  (1851)  5  Cox,  C.  C.  436...  299 

tRoy  v.  Goings,  112  111.  656 '274 

Rubber  Co.  v.  Adams,  23  Pick.  256 660 

tRuble  v.  Bunting  (Ind.  App.)  68  N.  E. 

1041  310 

Ruble  v.  Turner,  2  Hen.  &  M.  38 180 

Ruckley  v.  Kiernan,  7  Ir.  C.  L.  75 357 

Rudder  v.  Koopmann,  116  Ala.  332,  22 

South.  601,  37  L.  R.  A.  489 99 

Ruggles  v.  Lesure,  24  Pick.  190 406 

jRundell  T.  Kalbfus,  125  Pa.  123,  17  Atl. 

238  296 

Rung  v.  Shoneberger,  2  Watts,  23,  26  Am. 

Dec.  95 478 

tRunge  v.  Brown,  23  Neb.  817,  34  N.  W. 

660  74 

Runkle  T.  Meyer,  3  Yeates,  518,  2  Am. 

Dec.  393 330 

tRussell  v.  Morgan  (R.  I.)  52  Atl.  809....  277 
Russell  v.  Richards,  10  Me.  429,  25  Am. 

Dec.  254;  11  Me.  371,  26  Am.  Dec.  532..  405 

Russell  v.  Shuster,  8  Watts  &  S.  309 258 

Russen  v.  Lucas,  1  C.  &  P.  153 221 

Rust  v.  Low,  6  Mass.  94,  99,  100 414,  415 

Ruter  v.  Foy,  46  Iowa,  132 196 

tRuth  v.  St.  Louis  Transit  Co.,  98  Mo. 

App.  1,  71  S.  W.  1055 263 

Rutherford  v.  Holmes,  66  N.  Y.  370 244 

fRutherford  v.  Paddock,  180  Mass.  289,  293, 

62  N.  E.  381,  91  Am.  St.  Rep.  282 304,  353 

Ryan  v.  Railroad  Co.,  35  N.  Y.  210,  91  Am. 

Dec.  49 76,  79 

tRyan  v.  Tower,  128  Mich.  463,  87  N.  W. 

644,  55  L.  R.  A.  310,  92  Am.  St.  Rep.  481  577 
tRyerson  v.  Bathgate,  67  N.  J.  Law,  337, 

51  Atl.  708,  57  L.  R.  A.  307 657 

tRylands  v.  Fletcher,  L.  R.  3  H.  L.  330  565 
Ryppon  v.  Bowles,  Cro.  Jac.  373 462 


tSabre  v.  Mott  (C.  C.)  88  Fed.  780. 


203 


Page 
tSaddler  v.  Alexander,  56  S.  W.  (Ky.)  618  S 

tSadgrove  v.  Hole  (1901)  2  K.  B.  1 344 

tSt.  John  v.  Antrim  Co.,  122  Mich.  68,  80 

N.  W.  998 141 

tSt.  Paul  Water  Co.  v.  Ware,  16  Wall. 

566,  21  L.  Ed.  485 609 

tSswtsbury  v.  Herchenroder,  106  Mass.  458, 

8  Am.  Rep.  354 84 

Salkwell  v.  Milwarde,  26  Hen.  VI.  c.  23; 

10  Edw.  IV.  c.  7 415 

Saltus  v.  Everett,  20  Wend.  267,  32  Am. 

Dec.  541 122 

Salvin  v.  Coal  Co.,  L.  R.  9  Ch.  App.  705  418 

Sampson  v.  Smith,  8  Sim.  272 421 

Samuel  v.  Payne,  Doug.  358 250 

tSandeen  v.  Railroad  Co.,  79  Mo.  278 141 

Sanderson  v.  Baker,  2  W.  Bl.  832,  3  Wils. 

309  183 

Sanderson  v.  Caldwell,  45  N.  Y.  405,  6  Am. 

Rep.  105 334 

tSanderson  v.  Caldwell,  45  N.  Y.  398,  6 

Am.  Rep.  105 310,  319 

tSandford  v.  Clarke,  21  Q.  B.  Div.  398...  463 
tSandford  v.  Nichols,  13  Mass.  286,  7  Am. 

Dec.  151 241 

Sanford  v.  Railroad  Co.,  23  N.  Y.  343,  80 

Am.  Dec.  286 605 

tSanguinetti  v.  Pock,  136  Cal.  466,  69  Pac. 

98,  89  Am.  St.  Rep.  169 435 

Sargent  v.  Gile,  8  N.  H.  325,  331 521,  522 

Sarjeant  v.  Blunt,  16  Johns.  74 498 

Saunders  v.  Newman,  1  Barn.  &  Aid.  258  41 
tSauter  v.  Railroad  Co.,  66  N.  Y.  50,  23 

Am.  Rep.  18 137 

tSavacool  v.  Boughton,  5  Wend.  170,  21 

Am.  Dec.  181 240 

Savage  v.  Brewer,  16  Pick.  453,  28  Am. 

Dec.  255 276,  288 

Savage  v.  Stevens,  126  Mass.  207 665 

fSavannah,  F.  &  W.  Ry.  Co.  v.  Beavers, 

113  Ga.  398,  39  S.  E.  82,  54  L.  R.  A.  314. .  577 

Savile  v.  Jardine,  2  H.  Bl.  532 308 

tSaville  v.  Welch,  58  Vt.  683,  5  Atl.  491..  14i 

Sayles  v.  Briggs,  4  Mete.  421,  426 276 

tScheffer  v.  Railroad  Co.,  105  U.  S.  249, 

26  L.  Ed.  1070 138 

tSchlitz  v.  Brewing  Co.,  57  Minn.  303,  59 

N.  W.  188 617 

fSchmuck  v.  Hill  (Neb.)  96  N.  W.  158....  341 
tSchneider  v.  Railroad  Co.,  133  N.  Y.  583, 

30  N.  E.  752 598 

tSchoepflin  v.  Coffey,  162  N.  Y.  12,  56  N. 

E.  502 327 

Schroyer  v.  Lynch,  8  Watts,  453 543 

tSchubert  v.  Clark  Co.,  49  Minn.  331,  51 

N.  W.  1103,  15  L.  R.  A.  818,  32  Am.  St. 

Rep.  559 162 

tSchultz  v.  Bower,  57  Minn.  493,  59  N. 

W.  631,  47  Am.  St.  Rep.  630 50 

tSchultz  v.  Byers,  53  N.  J.  Law,  442,  22 

Atl.  514,  13  L.  R.  A.  569,  26  Am.  St.  Rep. 

435  61 

tSchumaker  v.  Mather,  133  N.  Y.  590,  30 

N.  E.  755 656,  661 

tSchumaker  v.  Railroad  Co.,  46  Minn.  39, 

48  N.  W.  559,  12  L.  R.  A.  257 80,  100 

tScotland,  The,  105  U.  S.  24,  29,  26  L.  Ed. 

1001  678 

tScott  v.  Bank,  72  Pa,  471,  13  Am.  Rep. 

711  65 

Scott  v.  Bay,  3  Md.  431 ft 


CASES  CITED. 


xlix 


Page 

Scott  v.  Dock  Co.,  3  Hurl.  &  C.  596 664 

tScott  v.  Eldridge,  154  Mass.  25,  27  N.  E. 

677,  12  L.   R.  A.  379 258 

tScott  v.   Fishblate,  117  N.  C.  265,  23  S. 

E.  436,  30  L..  R.  A.  696 535 

tScott  v.  Grover,  56  VL  499,  48  Am.  Rep. 

814    416 

Scott  v.   Rogers,   31  N.   Y.   676 498 

Scott  v.   Scott,  1  Cox,  378 25 

Scott   v.    Shepherd,    2    Black.    R.    892;    3 

Wils.    403,    2   W.    Bl.    892 

77,  85,  87,  90,  102,  108,  120,  494 

Seaman  v.   Cuppledick,   Owen,  150 197,  202 

Seaman  v.  Netherclift,  1  C.  P.  Div.  540..    26 

tSearls  v.  Viets,   2  Thomp.   &  C.   224 222 

Secretary  of  State  v.   Sahaba,  13  Moore, 

P.    C.    22,    86 183 

Seely  v.  Blair,  Wright  (Ohio)  358,  683....  372 
Seibert   v.    Price,    5   Watts   &    S.    438,   40 

Am.     Dec.     525 268 

tSeifter  v.   Railroad   Co.,   169   N.   Y.   254, 

62   N.    E.    349 138 

tSelp  v.  Deshler,  170  Pa.  334,  32  Atl.  1032  341 
tSellman  v.  Wheeler,  95  Md.  751,  54  Atl. 

512    181 

tSemayne's  Case,   5  Coke,   91a 546 

Seneca  Road  Co.  v.  Railroad  Co.,  5  Hill, 

170    87 

tSeneca  Road  Co.  T.  Railroad  Co.,  6  Hill, 

170,    176    44 

Severy   v.    Nickerson,    120   Mass.    306,    21 

Am.    Rep.    514 557 

Seyd  v.  Hay,  4  T.  R.  260 519 

tShackell  v.  Rosier,  2  Bing.  N.  C.  634...  178 

tShade  v.  Creviston,  93  Ind.  591 655 

fShafer  v.  Ahalt,  48  Md.  171,  30  Am.  Rep. 

456    327 

Sharp  v.   Powell,  L.   R.  7  C.   P.   253 107 

tShaver  v.   Edgell,  48  W.   Va.   502.  37  S. 

E.    664    181 

Shaw  v.  Coffin,   58  Me.   254,  4  Am.   Rep. 

290    ". 168 

fShaw  v.   Kaler,  106  Mass.  448 611 

Shay  v.  Thompson,  59  Wis.  540,  18  N.  W. 

473,    48  Am.    Rep.    538 195 

tShea  v.  Gurney,  163  Mass.  184,  39  N.  E. 

996,   47  Am.    St.    Rep.   446 657 

tSheehan  v.   Flynn,   59   Minn.  496,   61  N. 

W.  462,  26  L.  R.   A.  632 434 

tSheldon  v.  Hill,  33  Mich.  171 241 

tShelton  v.   Healy,  74  Conn.  265,  50  Atl. 

742    655 

Shelton  v.   Nance,   7  B.   Mon.   128 330 

tShepard  v.   Merrill,  13  Johns.  475 352 

Shields  v.  Yonge,  15  Ga.  349,  60  Am.  Deo. 

698    624 

Shingleton  v.  Smith,  Lutw.  1481,  1483 202 

tShlpley  v.  Edwards,  87  Iowa,  310,  54  N. 

W.  151  205 

Shipley  v.  Todhunter,  7  Car.  ft  P.  680....  330 
tShippy  T.  Au  Sable,  85  Mich.  280,  48  N. 

W.  584  589 

tShovlin  v.   Comm.,  106  Pa.   369 214 

Shrieve  v.  Stokes,  8  B.  Mon.  453,  48  Am. 

Dec.    401    48 

Shultz  v.   Chambers,  8  Watts,  300 381 

Shurtleff  v.  Parker,  130  Mass.  293,  39  Am. 

Rep.    454    98 

Shury  v.  Piggot,  3  Bulst.  339,  Poph.  166..    41 

Sikes  v.  Johnson,  16  Mass.  389 164,  168 

CHASE  (2o  ED.) — d 


Page 
Simar  v.  Canaday,  53  N.  Y.  306,  13  Am. 

Rep.  623  653 

Simpson  T.  Hornbeck,  3  Lans.  53 243 

t Simpson  v.  Hornbeck,  3  Lans.  63 246 

tSinger  Mfg.  Co.  v.  King,  14  R.  I.  611....  622 

Skinner  v.  Powers,  1  Wend.  451 353 

fSkinner  v.  Powers,  1  Wend.  451 352 

tSlagle  v.  Goodnow,  45  Minn.  531,  48  N. 

W.  402  65C 

tSlater  v.  Mersereau,  64  N.  Y.  138.... 100,  171 
Slaughter's  Adm'r  v.  Gerson,  13  Wall. 

379-383,  20  L.  Ed.  627 660,  664 

fSlaughter's  Adm'r  v.  Gerson,  13  Wall. 

379,  20  L.  Ed.  627 661 

tSleight  T.  Leavenworth,  5  Duer,  122...  239 
tSloggy  v.  Dilworth,  38  Minn  179,  36  N. 

W.  451,  8  Am.  St.  Rep  656 ' 459 

fSmall  v.  McGovern,  117  Wis.  608,  94  N. 

W.  651  266 

tSmedley  v.  Soule,  125  Mich.  192,  84  N. 

W.  63  382 

Smelting  Co.  v.  Tipping,  11  H.  L.  Cas. 

642  447 

Smith  v.  Benson,  1  Hill,  176 405 

Smith  v.  Boston,  7  Gush.  254 465 

tSmith  v.  Brooklyn,  18  App.  Div.  340,  46 

N.   Y.    Supp.   141;   160  N.   Y.   357,   54  N. 

E.  787,  45  L.  R.  A.  664 60 

Smith  v.  Buggy  Co.,  175  111.  619,  51  N.  E. 

569,    67  Am.    St   Rep.    242;   66  111.    App. 

516  280,  286 

tSmith  v.  Burrus,  106  Mo.  94,  16  S.  W. 

881,   13  L.   R.   A.   59,   27  Am.    St.   Rep. 

329  287,  372 

Smith  v.  Chadwick,  20  Ch.  Div.  27,  44, 

67;  L.  R.  9  App.  Cas.  187,  190.. 635,  636,  641 
Smith  v.  Condry,  1  How.  28,  17  Pet.  20, 

11  L.  Ed.  35 677 

tSmith  v.  Condry,  1  How.  28,  11  L.  Ed.  35  678 

Smith  v.  Docks  Co.,  L.  R.  3  C.  P.  326 556 

tSmith  v.  Faxon,  156  Mass.  589,  31  N.  E. 

687  84 

tSmith  v.  Foran,  43  Conn.  244,  21  Am. 

Rep.  647  178 

tSmith  v.  Hale,  158  Mass.  178,  33  N.  E. 

493,  35  Am.  St.  Rep.  485 394 

Smith  v.  Hintrager,  67  Iowa,  109,  24  N. 

W.  744  283 

Smith  v.  Howard,  28  Iowa,  51 26 

tSmith  v.  Johnson,  76  Pa.  191 71 

Smith  v.  Kenrick,  7  C.  B.  515 64 

tSmith  v.  Leaven  worth,  15  Kan.  81 67 

Smith  v.  Lewis,  3  Johns.  157,  3  Am.  Dec. 

469  27 

Smith  v.  Lozo,  42  Mich.  6,  3  N.  W.  227..  183 

Smith  v.  Martin,  2  Saund.  400 49 

tSmith  v.  Moore,  74  Vt  81,  52  Atl.  320...  307 
tSmith  v.  Nippert,  76  Wis.  86,  44  N.  W. 

846,  20  Am.  St.  Rep.  26 71 

Smith  v.  Pelah,  2  Strange,  1264 485,  486 

tSmith  v.  Railroad,  114  N.  C.  728,  19  S. 

E.  863,  923,  25  L.  R.  A.  287 571,  572 

Smith  v.  Richardson,  Wllles,  24 338 

Smith  v.  Shepherd,  Abbott,  Shipp.  (4th 

Ed.)  pp.  263,  269,  pt.  3,  c.  4 83 

tSmith  v.  Smith,  110  Mass.  302;  43  N. 

H.  536  141,  389 

Smith  v.  Spooner,  3  Taunt.  254 384 

tSmith  v.  Stewart,  5  Pa.  372 301 

Smith  T.  Taylor,  1  Bos.  &  P.  (N.  R.)  196  320 


1 


CASES  CITED. 


Page 

Smith  T.  Thackerah,  L.  R.  1  C.  P.  564...  48 
tSmith  v.  Thackerah,  L.  R.  1  C.  P.  564. .  50 

Smith   v.    Tonstall,    Carth.    3 19,  20 

tSmith  v.  Tripp,  13  R.   L   152 32 

Smiths  v.   McConathy.  11  Mo.  517 481 

tSmurthwaite  v.  Publishing  Co.,  124  Mich. 

377,   83   N.   W.   116 372 

tSnag  y.   Gee,   4  Coke,   16a 311 

tSnead  T.  Bonnoil,  166  N.   Y.   325,  59  N. 

E.   899    255 

tSnedeker    v.    Snedeker,    164    N.    Y.    58, 

58   N.   E.   4 626 

fSnell    v.    Snow,    13    Mete.    278,    46    Am. 

Dec.   730   382 

Snyder  v.  Andrews,  6  Barb.  43 332 

tSohn   v.    Cambern,    106    Ind.    302,    6    N. 

E.   813 467 

tSolinsky   v.    Bank,    85    Tenn.    368,    4   S. 

W.  836  546 

Solomon  v.  Vintners'  Co.,  4  H.  &.  N.  585, 

599,   602    49 

Soltau  v.  De  Held,  2  Sim.  (N.  S.)  133.. 447,  467 
tSoltau  v.  De  Held,  2  Sim.  (N.  S.)  133...  448 

Somerville  v.  Hawkins,  10  C.  B.  583 356 

Sommer  v.  Wilt,  4  Serg.  &  R.  24 274 

tSorenson  v.    Dundas,  50  Wis.   335,  7  N. 

W.    259    220 

tSorgenfrei  v.   Schroeder,  75  111.  397 205 

tSouter  v.  Codman,  14  R.  I.  119,  51  Am. 

Rep.    364    200 

Southern  v.  Allen,  3  Salk.  326,  T.  Raym. 

231    318 

South   Carolina   v.    Georgia,    93   U.    S.    4, 

12,    23   L.    Ed.    782 474 

tSouthern  Development  Co.  v.  Silva,  125 

U.  S.  247,  8  Sup.  Ct.  881,  31  L.  Ed.  678.. 

654,  674 
tSouthern   Exp.    Co.   v.   Couch,   133  Ala. 

285,   32   South.    167 181 

Southold  v.  Daunston,  Cro.  Car.  269 Ill 

Spade  v.   Railroad  Co.,  168  Mass.  285,  47 

N.   E.   88,  38  L.  R.  A.  512,   60  Am.   St 

Rep.    393    98 

tSpaits  v.  Poundstone,  87  Ind.  522,  44  Am. 

Rep.    773    341 

+Spalding  v.  Vilas,  161  U.  S.  483,  16  Sup. 

Ct    631,   40  L.    Ed.   788 635 

tSpancake  v.    Railroad   Co.,   148  Pa.  184, 

23  Atl.  1006,  33  Am.  St.  Rep.  821 623 

Sparhawk  v.  Railroad  Co.,  54  Pa.  401...  447 
tS.  P.  Conner  v.  Comstock,  17  Ind.  90...  518 
tSpencer  v.  Anness,  32  N.  J.  Law,  100. .  252 
Spencer  v.  Blackman,  9  Wend.  167.  ..497,  498 

Spencer  v.    McGowen,   13  Wend.    256 198 

Spencer  T.   Railroad  Co.,  8  Sim.  193 467 

Spofford   v.    Harlow,    3   Allen,   176 14 

Spooner    v.    Manchester,    133    Mass.    270, 

43    Am.    Rep.    514 506 

tSpooner   v.    Manchester,    133   Mass.    270, 

43  Am.  Rep.  514 499,  508 

tSpooner  v.   Railroad  Co.,   115  N.  Y.   22, 

21   N.    B.    696 600 

Spoor  v.   Newell,   3  Hill,  307 140 

Sprague  v.   Kneeland,   12  Wend.    161 172 

t  Spring   Co.    v.    Edgar,    99   U.    S.    645,   25 

L.    Ed.    487 488 

Sproul   v.   Plllsbury,   72   Me.    20 344 

Stackpole  v.   Healy,   16  Mass.   38,   8  Am. 

Dec.   121   415 

tStaftord  v.  Ingersol,  3  Hill,  38 36 


Page 
tStahl  v.   Railroad  Co.,   71  N.    H.   57,   51 

Atl.    176 522 

tStandard   Oil   Co.    v.    Murray,   67   C.    C. 

A.  1,  119  Fed.   572 156 

Standish    v.    Steam-Ship    Co..    Ill    Mass. 

512,   16   Am.    Rep.    66 224 

Stanley  v.   Gaylord,   1  Gush.  546,   48  Am. 

Dec.    643 516 

t  Stanley  v.  Gaylord,  1  Cush.  536,  48  Am. 

Dec.   643 493,   517 

tStanley  v.   Powell   (1891)   1  Q.   B.   86... 

US,  119,  130 
Stansell   T.    Jollard,    cited   in   2   Car.    & 

K.   250,   255 49 

Stanton   v.    Hart,   27   Mich.   539 279 

Stanton  v.   McMullen,   7  111.    App.   326...  178 

tStaples   v.    Smith,    48    Me.    470 495 

Starling  v.  Turner,  2  Lev.  50,  2  Vent.  25    38 

Starr  v.   Jackson,  11  Mass.   519 399 

tState  v.   Balch,  31  Kan.  465,  2  Pac.  609  373 

tState  v.  Bank  (Neb.)  81  N.  W.  319 499 

tState  v.  Beckner,  132  Ind.  371,  31  N.  E. 

950,   32  Am.    St.   Rep.   257 546 

State  v.  Benedict,  U  Vt.  238,  34  Am.  Dec. 

688    187 

State   v.    Blackwoll,    9   Ala.    79 186 

State  v.  Brown,  5  Har.   (Del.)  507 258 

tState   v.    Burnham,    56   Vt    445,    48  Am. 

Rep.    801    196 

tState  v.  Campbell,   107  N.  C.  £48,  12  S. 

E.   441 260 

State    v.    Davis,    23    N.    C.    125,    127,    35 

Am.   Dec.   735 186,   187,   190 

State  v.  Elliot,  11  N.  H.  540,  545 202 

tState  v.  Elliot,  10  Kan.  App.  69,  61 

Pac.  981;  11  N.  H.  540 382 

State  v.  Fifield,  18  N.   H.  34 521 

State  v.   Flannagan,   67  Ind.  140 478 

tState   v.    Fox,    79    Md.    514,    29   Atl.    601, 

24  L.  R.  A.  679,  47  Am.  St  Rep.  424...  162 

tState  v.   Gibson  (Or.)   73  Pac.   333 200 

tState    v.    Godfrey,    17    Or.    300,    20    Pac. 

625,  U  Am.   St.   Rep.   830 1S7 

tState  v.   Goold,   53  Me.   279 209 

tState  v.  Greer,  22  W.  Va.  800 200 

tState  v.  Hampton,  63  N.   C.  13 190 

State  v.   Hollyway,  41  Iowa,  200,  20  Am. 

Rep.    586    203 

tState   v.    Home,   92   N.    C.    805,    53   Am. 

Rep.    442 189 

tState   v.    Hoskins,   109  Iowa,   656,  80  N. 

W.    1063,   47   L.   R.   A.   223,   77  Am.    St 

Rep.  560   351 

tState    v.    Jones,    95   N.    C.    688,    59   Am. 

Rep.   282   212 

tState  v.   Kaiser,  78  Mo.   App.   575 200 

tState   v.    Keenan,    111   Iowa,    286,    82   N. 

W.  792  373 

State  v.   Keeran,   5  R.  I.  497,  510 478 

tState  T.    Koontz,   83   Mo.    323 545 

tState   v.    Lewis,   50   Ohio   St   179,   33  N. 

B.  405,    19   L.    R.    A.    449 258 

tState  v.   Malster,   57  Md.   287 622 

tState  v.  MIddleham,  62  Iowa,  150,  17  N. 

W.  446  200 

tState  v.  Mills,  3  Pennewill  (Del.)  508, 

52  Atl.  266 193 

tState  v.  Mizner,  45  Iowa,  248,  24  Am. 

Rep.  769  212 

State  v.  Moore,  31  Conn.  479,  83  Am. 

Dec.    153    14 


CASES  CITED. 


li 


Pago 

State  v.  Mullikin,  8  Blackf.  260 472 

State  v.  Nash,  88  N.  C.  618 203 

State  v.  Neely,  74  N.  C.  425,  21  Am. 

Rep.  496 187 

tState  v.  Newland,  27  Kan.  764 196 

fState  v.  Patten,  49  Me.  383 516 

State  v.  Paul,  5  R.  I.  185 481,  482 

tState  v.  Peacock,  40  Ohio  St.  333 200 

State  v.  Pendergrass,  19  N.  C.  365,  31 

Am.  Dec.  416 211 

tState  v.  Railroad  Co.,  80  Me.  430,  15 

Atl.  36;  52  N.  H.  528 571,  596 

State  v.  Richardson,  38  N.  H.  208,  75 

Am.  Dec.  173 521 

tState  v.  Sears,  86-Mo.  169 187 

State  v.  Shepard,  10  Iowa,  126 187 

tState  v.  Shippman,  83  Minn.  441,  86  N. 

W.  431 351,  383 

State  v.  Smith,  2  Humph.  457 187 

tState  v.  Totman,  80  Mo.  App.  125 200 

tState  v.  Underwood,  75  Mo.  231 255 

tState  v.  Vannoy,  65  N.  C.  532 189 

tState  v.  Verry,  36  Kan.  416,  13  Pac.  838  352 
tState  v.  Wait,  44  Kan.  310,  24  Pac.  354  351 
tStearns  v.  Vincent,  50  Mich.  209,  15  N. 

\V.  86,  45  Am.  Rep.  37 546 

JSteele  v.  Dunham,  26  Wis.  393 538 

tSteele  v.  Edwards,  15  Ohio  Cir.  Ct.  R. 


52 


344 


Steele  v.  Southwick,  1  Amer.  Lead.  Cas. 

135;     1    Hare    &   W.    Lead.    Cas.    (5th 

Ed.)  123;  9  Johns.  214 330,  333 

Steinmetz  v.  Kelly,  72  Ind.  442,  37  Am. 

Rep.  170  196 

tStendal  v.  Boyd,  67  Minn.  279,  69  N.  W. 

899  577 

tStephen  v.  Smith,  29  Vt.  160 209 

tSterger  v.  Van  Sicklen,  132  N.  Y.  499, 

30  N.   E.   987,   16   L.   R.   A.   640,   28  Am. 

St.  Rep.  594 557 

tSterling  v.  Warden,  51  N.  H.  217.  12 

Am.  Rep.  80 394 

tStern  v.  Katz,  38  Wis.  136 307 

Stetson  v.  Faxon,  19  Pick.  147,  31  Am. 

Dec.  123 465 

Stevens  v.  Fassett,  27  Me.  280 211 

tStevens  v.  Gordon,  87  Me.  564,  33  Atl.  27  511 
Stevens  v.  Hartwell,  11  Mete.  (Mass.) 

542  324 

tStevens  v.  Kelley,  78  Me.  445,  6  Atl. 

868,  57  Am.  Rep.  813 60 

tStevens  v.  Rowe,  59  N.  H.  578,  47  Am. 

Rep.  231  28 

Stevenson  v.  Hayden,  2  Mass.  406 306 

tStevenson  v.  Love  (C.  C.)  106  Fed.  466  385 
Stevenson  v.  Newnham  (1853)  13  C.  B. 

297  298 

tStevenson  v.  Newnham,  13  C.  B.  297...  71 
tSteward  v.  Gromett,  7  C.  B.  (N.  S.)  191  289 

tStewart  v.  Emerson,  52  N.  H.  301 656 

tStewart.v.  Railroad  Co.,  168  U.  S.  445, 

18  Sup.  Ct.  105,  42  L.  Ed.  537 684 

Stewart  v.  Ranche  Co.,  128  U.  S.  383, 

9  Sup.  Ct.  101,  32  L.  Ed.  439 648 

tStewart  v.  Sonneborn,  98  U.  S.  187,  25 

L.  Ed.  116 266,  270 

tStewart  v.  Stearns,  63  N.  H.  99,  56  Am. 

Rep.  496  648 

Stiebeling  v.  Lockhaus,  21  Hun,  457 387 

Stiles  v.  Davis,  1  Black,  101,  17  L.  Ed. 

33    521 


Page 
tStillwater  Water  Co.  v.  Farmer  (Minn.) 

93  N.  W.  907,  60  L.  R.  A.  875 60 

tStock  v.  Keele,  86  App.  Div.  136,  83  N. 

Y.  Supp.  133 353 

Stockton  v.  Frey,  4  Gill.  406,  45  Am. 

Dec.  138  137 

Stokes  v.  Saltonstall,  13  Pet.  181,  10  L. 

Ed.  115 137,  598 

tStokes  v.  Saltonstall,  13  Pet.  181,  10 

L.  Ed.  115 598 

Stone  v.  Denny,  4  Mete.  (Mass.)  151 643 

tStone  v.  Hills,  45  Conn,  44,  29  Am. 

Rep.  635  606 

tStonebridge  v.  Perkins,  141  N.  Y.  1,  5, 

35  N.  E.  980 511 

Storey  v.  Challands,  8  Car.  &  P.  234 360 

Storm  v.  Livingston,  6  Johns.  44 522 

Storrs  v.  Utica,  17  N.  Y.  104,  72  Am. 

Dec.  436 608 

Stout  v.  Wood,  1  Blackf.  71 677 

Stout  v.  Wren,  1  Hawks,  420 195 

tStover  v.  Bluehill,  51  Me.  439...., 137 

Stow  v.  Converse,  3  Conn.  325,  8  Am. 

Dec.  189 330 

Stowball  v.  Ansell,  Comb.  116 538 

tStowell  v.  Lincoln,  11  Gray,  434 43 

tStowell  v.  Otis,  71  N.  Y.  36 512 

tStrand  v.  Griffith,  38  C.  C.  A.  444,  97 

Fed.  854 666 

tStrang  v.  Bradner,  114  U.  S.  555,  5  Sup. 

Ct.  1038,  29  L.  Ed.  .248 170 

Strauss  v.  Francis,  4  F.  &  F.  1107,  1114  70 
tStreater  v.  State,  137  Ala.  93,  34  South. 

395  117 

tStreet  v.  Sinclair,  71  Ala,  110 203 

t  Street  R.  Co.  v.  Eadie,  43  Ohio  St.  91, 

1  N.  E.  519,  54  Am.  Rep.  802 596 

tStriegel  v.  Moore,  55  Iowa,  88,  7  N. 

W.  413 121 

Stringham  v.  Hilton,  111  N.  Y.  188,  18 

N.  E.  870,  1  L.  R.  A.  483 614 

tStrobel  v.  Salt  Co.,  164  N.  Y.  303,  58 

N.    E.    142,    51    L.    R.    A.    687,    79    Am. 

St.  Rep.  643 440 

Strout  v.  Gooch,  8  Greenl.  127 221 

Stroyan  v.  Knowles,  6  H.  &  N.  454....  48 

Struthers  v.  Railway,  87  Pa.  282 470 

tStuart  v.  Publishing  Co.,  83  App.  Dlv. 

467,    82    N.    Y.    Supp.    401;      67    N.    J. 

Law,  317,  51  Atl.  709 353,  373 

tStubbs  v.  Mulholland,  168  Mo.  47,  67  S. 

W.  650 266,  270,  274 

tStuber  v.  McEntee,  142  N.  Y.  200,  36 

N.  E.  878 626 

tSturtevant  v.  Root,  27  N.  H.  69 382 

tSuggs  v.  Anderson,  12  Ga,  461 206 

tSullivan  v.  Dunham,  161  N.  Y.  290,  55 

N.    B.    923,    47   L.    R.    A.    715,    76    Am. 

St.  Rep.  274 118 

tSullivan  v.  Railroad  Co.,  112  N.  Y. 

643,  20  N.  E.  569,  8  Am.  St.  Rep.  793...  138 
tSullivan  v.  Zeiner,  98  Cal.  346,  33  Pac. 

209,  20  L.  R.  A.  730 61 

Sumner  v.  Utley,  7  Conn.  257 320,  321 

Sunbolf  v.  Alford,  3  Mees.  &  W.  248 224 

tSun  Life  Assur.  Co.  v.  Bailey  (Va.)  44 

S.  E.  692 344 

Supreme  Lodge  v.  Unverzagt,  76  Md.  104, 

24  Atl.   323 283,  286 

tSusquehanna   Fertilizer   Co.    v.    Malone, 

73  Md.  268,   20  Atl.  900,  9  L..  R.  A.  737, 

25  Am.   St.   Rep.  595 425,  429 


lii 


CASES   CITED. 


Page 
tSutphen  T.  Hedden,  67  N.  J.  Law,  324, 

51  Atl.  721 84 

Sutton  v.  Buck,  2  Taunt.  302,  312 407 

Swaim  v.  Stafford,  25  N.  C.  289;  26  N.  C. 

392  268 

Swan  T.  Tappan,  5  Cush.  104 70,  386,  387 

Swans,  Case  of,  7  Coke,  18 489 

fSwart  v.  Rickard,  148  N.  Y.  264,  269,  42 

N.  B.  665 229,  246 

Sweeney  v.  Baker,  13  W.  Va.  183,  31  Am. 

Rep.  757 371 

tSweeney  v.  Baker,  13  W.  Va.  158,  31  Am. 

Rep.  757 351 

tSweeney  v.  Berlin  Co.,  101  N.  Y.  520,  5 

N.  E.  358,  54  Am.  Rep.  722 622 

tSweeney  v.  Merrill,  38  Kan.  216,  16  Pac. 

454,  5  Am.  St.  Rep.  734 83 

tSweeney  v.  Railroad  Co.,  10  Allen,  368, 

87  Am.  Dec.  644 557 

Swett  v.  Cutts,  50  N.  H.  439,  9  Am.  Rep. 

276  432 

Syeds  v.  Hay,  4  Term  R.  260 497,  498 

tSymonds  v.  Hall,  37  Me.  354,  59  Am.  Dec. 

53  545 

Taaffe  v.  Downes,  3  Moore,  P.  C.  41 528 

tTalbott  v.  Plaster  Co.,  86  Mo.  App.  558..  289 

tTapley  v.   Forbes,   2  Allen,  24 35 

Tapley  v.  Wainwright,  5  Barn.   &  Adol. 

395   ; 398 

Taplin's  Case,  2  East,  P.  C.  712 186 

Tarver  v.    State,   43  Ala.   354 186 

Tasbiirgh  v.  Day,  Cro.  Jac.  484 387 

Taylor  v.  Ashton,  11  Mees.  &  W.  401 631 

tTaylor  v.  Bank,  174  N.  Y.  181,  184,  66  N. 

E.  181,  62  L.  R.  A.  783,  95  Am.  St.  Rep.     • 

564   656 

tTaylor  v.  Bidwell,  65  Cal.  489,  4  Pac.  491    28 

Taylor  v.  Church,  8  N.  Y.  452 366,  368 

Taylor  v.  Doremus,  16  N.  J.  Law,  473 230 

tTaylor  v.  Guest,  58  N.  Y.  262 74 

Taylor  v.  Markham,  Cro.  Jac.  224 202 

Taylor  v.  Pennsylvania  Co.,  78  Ky.  348,  39 

Am.   Rep.   244 683 

Taylor  v.  People,  6  Parker,  Cr.  R.  352 

421,  423 
tTaylor  v.   Railroad   Co.,   45  Mich.   74,   7 

N.   W.   728,   40  Am.   Rep.   457;     (1895)   1 

Q.   B.   134 32,  138 

tTaylor  v.  Turnpike  Co.,  65  N.  J.  Law, 

102,  46  Atl.  707 557 

Taylor  v.  Whitehead,  2  Doug.  745,  747 

392,  409 

tTeal  v.   Fissel   (C.   C.)   28  Fed.   351 235 

tTeall  v.  Felton,  1  N.  Y.  537,  49  Am.  Dec. 

352;     Id.,   12  How.   285,   13  L.   Ed.   990..  543 
tTellefsen  v.  Fee,  168  Mass.  188,  46  N.  E. 

562,  45  L.  R.  A.  481,  60  Am.  St.  Rep.  379  547 
Temperton  v.  Russell  (1893)  1  Q.  B.  715.. 

298,  299 

tTemperton  v.  Russell  (1893)   1  Q.  B.  715  117 
tTemple  Co.  v.  Insurance  Co.  (N.  J.  Sup.) 

54  Atl.    295 516 

Tenant  v.  Golding,  1  Salk.  21 563 

tTerre   Haute   &   I.    R.    Co.    v.    Buck,   96 

Ind.  346,  49  Am.  Rep.  168 137 

Terry  v.  Davis,  114  N.  C.  31,  18  S.  E.  943 

283,  286 
tTerry  v.  Munger,  121  N.  Y.  161,  24  N.  E. 

272,  8  L.  R.  A.  216,  18  Am.  St.  Rep.  803  141 
Terwilliger  v.  Telegraph  Co.,  59  111.  249...  671 


tTerwilllger  v.  Telegraph  Co.,  59  111.  249..  669 
Tessymond's  Case,  1  Lewin,  Cr.  Cas.  169. .  160 

Tewksbury  v.  Bucklin,  7  N.  H.  518 415 

tTexas  &  P.  R.  Co.  v.  Cox,  145  U.  S.  593, 

12  Sup.  Ct.  905,  36  L.  Ed.  829 678 

Thayer  v.  Arnold,  4  Mete.  (Mass.)  589....  415 
tThayer  v.  Arnold,  4  Mete.  (Mass.)  589..  416 
Thayer  v.  Boston,  19  Pick.  511,  514,  31 

Am.    Dec.    157 465 

Thayer   v.    Brooks,    17   Ohio,   489,    492,    49 

Am.  Dec.  474 679 

tThayer  T.  Manley,  73  N.  Y.  305,  309...  525 
Thomas  v.  Croswell,  7  Johns.  271,  5  Am. 

Dec.    269 381 

tThomas  v.  Murphy,  87  Minn.  358,  91  N. 

W.  1097 648 

Thomas  v.   Winchester,   6   N.    Y.    397,   57 

Am.  Dec.  455 90,93 

Thompson  v.  Lusk,  2  Watts,  17,  26  Am. 

Dec.    91 381 

tThompson  v.   Shackell,  M.   &  M.  187....  373 

Thorley  v.  Kerry,  4  Taunt.  355 329 

Thorogood  v.   Bryan,  8  C.  B.  115 591-594 

tThorogood  v.  Bryan 596 

tThorpe  v.  Coal  Co.,  24  Utah,  475,  68  Pac. 

145   684 

fThrall  v.  Knapp,  17  Iowa,  468 206 

tThurber  v.  Railroad  Co.,  60  N.  Y.  326..  577 

Thurman  v.  Wild,  U  Ad.  &  El.  453 180 

Thurston  v.  Adams,  41  Me.  419 240 

tThurston  v.  Adams,  41  Me.  419 547 

Thurston  v.   Hancock,   12  Mass.   220,   224, 

229,  7  Am.   Dec.  57 46-48,  53,  55 

tTice  v.  Munn,  94  N.  Y.   621 137 

tTillman  v.   Beard,   121  Mich.  475,   80  N. 

W.  248,  46  L.  R.  A.  215 235 

tTimes  Pub.  Co.  v.  Carlisle,  36  C.  C.  A. 

475,  94  Fed.  762 354 

tTimlin  v.  Oil  Co.,  126  N.  Y.  514,  27  N.  E. 

786,  22  Am.   St.  Rep.  845 463 

Timothy  v.   Simpson,  1  Cromp.  M.  &  R. 

757  257 

tTimothy  v.  Simpson,  1  Cr.  M.  &  R.  757  260 
tTindle  v.  Birkett,  171  N.  Y.  520,  64  N.  E. 

210,  89  Am.  St.   Rep.  822 669 

tTinker  v.   Forbes,  136  111.  221,  26  N.  E. 

503   I 

Tipping  v.  Smelting  Co.,  4  Best  &  S.  608- 

615,  U  H.  L.  Cas.  642;    1  Ch.  App.  66.. 

55,    421,    451,  467 

Tobias  v.  Harland,  4  Wend.  537 387 

tTobias  v.  Harland,  4  Wend.   537 387 

tTobin  v.  Bell,  73  App.  Div.  41,  76  N.  Y. 

Supp.    425 258,  260 

Todd  v.  Hawkins,  8  Car.  &  P.  88 363,  367 

Todd  v.  Railroad  Co.,  3  Allen,  18,  30  Am. 

Dec.  49;    7  Allen,  207,  83  Am.  Dec.  679..  569 

ITodd  v.  Rough,  10  Serg.  &  R.  18 304 

tToledo,  W.  &  W.  R.  Co.  v.  Black,  88  111. 

112   622 

Tollit  v.  Sherstone,  5  Mees.  &  W.  283....  152 
Tompkins  v.  Railroad  Co.,  66  Cal.  163,  4 

Pac.  1165  595 

t*Tompkins  v.  Railroad  Co.,  66  Cal.  163,  4 

Pac.    1165 180 

tTonawanda  R.  Co.  v.  Munger,  5  Denio, 

255,  49  Am.  Dec.  239 414,  416 

Toogood  v.  Spyring,  1  Cronrp.  M.  &  R.  181 

359,  368 
tToth  v.  Greisen  (N.  J.  Sup.)  51  Atl.  927..  270 


CASES  CITED. 


liii 


Page 
fTotten  Y.  Burhans,  91  Mich.  495,  61  N. 

W.  1119 642 

Towne  v.  Wiley.  23  Vt.  355,  56  Am.  Dec. 

85  166,  508 

Town  of  Plerrepont  v.  Loveless,  72  N.  Y. 

211  607 

Townsend  v.  Railroad  Co.,  56  N.  Y.  295, 

15  Am.  Rep.  419 223 

•fTracy  v.  Cloyd,  10  W.  Va.  19 543 

fTrain  v.  Taylor,  51  Hun,  215,  4  N.  Y. 

Supp.  492 296 

Transfer  Co.  v.  Kelly,  36  Ohio  St.  86,  38 

Am.  Rep.  558 595 

Tremain  v.  Cohoea  Co.,  2  N.  Y.  163,  61 

Am.  Dec.  284 451 

fTremain  v.  Cohoes  Co.,  2  N.  Y.  163,  51 

Am.  Dec.  284 118 

fTremain  v.  Richardson,  68  N.  Y.  617 36 

JTreschman  v.  Treschman,  28  Ind.  App. 

206,  61  N.  E.  961 212 

Tribune  Co.  v.  Bruck,  61  Ohio  St.  489,  56 

N.  E.  198,  76  Am.  St.  Rep.  433 286 

tTrimble  v.  Reid,  97  Ky.  713,  31  S.  W.  861  642 

tTrimmer  v.  Hiscock,  27  Hun,  364 319 

tTriplett  v.  Jackson,  5  Kan.  App.  777,  48 

Pac.  931 6 

tTrower  v.  Chadwick,  3  Bing.  N.  C.  334;  4 

Bing.  N.  C.  1 61 

tTrussell  v.  Scarlett  (C.  C.)  18  Fed.  214. .  368 
Trustees  of  Geneva  v.  Electric  Co.,  50 

Hun,  581,  3  N.  Y.  Supp.  595;    130  N.  Y. 

670,  29  N.  E.  1034 177 

tTrustees  of  Village  of  Canandaigua  v. 

Foster,  156  N.  Y.  354,  50  N.  E.  971,  41  L. 

R.  A.  554,  66  Am.  St.  Rep.  575 178 

fTuberville  v.  Savage,  1  Mod.  3 190 

tTucker  v.  Draper,  62  Neb.  66,  86  N.  W. 

917,  54  L.  R.  A.  321 557 

Tucker  v.  Jerris,  75  Me.  184 183 

fTucker's  Adm'r  v.  Railroad  Co.,  92  Va. 

549,  24  S.  E.  229 571 

Tuff  v.  Warman,  5  C.  B.  (N.  S.)  573 568 

tTully  v.  Railroad  Co.,  2  Pennewill,  537, 

47  Atl.   1019,  82  Am.  St.  Rep.  425 671 

fTunstall  v.  Christian,  80  Va.  1,  56  Am. 

Rep.  581 6,  61 

Tunstall  v.  Clifton  (Tex.  Civ.  App.)  49  S. 

W.  244 286 

tTuress  v.  Railroad  Co.,  61  N.  J.  Law, 

314,  40  Atl.  614 677 

Turner  v.  Brock,  6  Heisk.  50 624 

tTurner  v.  Holtzman,  54  Md.  148,  89  Am. 

Rep.  361 479 

Turner  v.  Meymott,  1  Bing.  158 393 

Turnpike  Road  v.  Boone,  45  Md.  344 137 

Turnpike  Road  v.  Miller,  5  Johns.  Ch. 

101,  9  Am.  Dec.  274 40 

tTurpen  v.  Booth,  56  Cal.  65,  38  Am.  Rep. 

48   535 

Turpen  v.  Remy,  3  Blackf.  210 264 

Tuson  v.   Evans,  12  Adol.  &  El.  733 378 

Tutein  v.   Hurley,   98  Mass.   211,  93  Am. 

Dec.  154 98 

Tuthill  v.  Milton,  Cro.  Jac.  222 316 

tTuttle  v.  Campbell,  74  Mich.  652,  42  N. 

W.  384,  16  Am.  St.  Rep.  652 515 

tTuttle  v.  Farmington,  58  N.  H.  13....  137 
fTuttle  v.  Railroad  Co.,  66  N.  J.  Law, 

327,  49  Atl.  450,  54  L.  R.  A.  582,  88  Am. 

St.  Rep.  491;    122  U.  S.  189,  7  Sup.  Ct. 

1166,    30  L.    Ed.    1114 87,    614 


Page 

Tutty  T.  Alewln,  11  Mod.  221 320 

•jTwigg   v.    Byland,    62   Md.    380,    50   Am. 

Rep.    226    488 

Tyler   v.    Wilkinson,    4   Mason,    397,    400- 

*  405,   Fed.   Cas.   No.   14,312 41,   437 

Type  &  Stereotype  Foundry  Co.  v.  Mor- 
timer, 7  Pick.  166,  19  Am.  Dec.  266 18 

Tyson  v.   Booth,   100  Mass.  258 206 

tUnion  Nat.  Bank  v.  Hunt,  76  Mo.  439..  666 
tUnion  Pac.  R.  Co.  v.  Daniels,  152  U.  S. 

684,  14  Sup.  Ct.  756,  38  L.  Ed.  597 614 

tUnion  Pac.  R.  Co.  v.  McDonald,  152  U. 

S.  262,  14  Sup.  Ct  619,  38  L.  Ed.  434..  577 
tUnion  Pac.  R.  Co.  v.  O'Brien,  161  U.  S. 

451,  16  Sup.  Ct.  618,  40  L.  Ed.  766....  614 
tUnited  Lines  Tel.  Co.  v.  Grant,  137  N. 

Y.   7,   32  N.    E.   1005 241 

tUnited  Railways  &  Electric  Co.  v.  Hard- 

esty,  94  Md.  661,  51  Atl.   406,  57  L.  R. 

A.   275    209 

U.  S.  v.  Coolldge,  1  Gall.  488,  Fed.   Cas. 

No.  14,857;  1  Wheat.  415,  4  L.  Ed.  124..  315 
U.  S.  v.  Elder,  4  Cranch,  C.  C.  507,  Fed. 

Cas.    No.   15,039   472 

U.   S.  v.  Hudson,  7  Cranch,  32,  3  L.  Ed. 

259    315 

U.   S.   v.  Worrall,  2  Dall.  384,   Fed.  Cas. 

No.   16,766,   1  L.   Ed.  426.... 315 

tUpjohn  v.   Richland,  46  Mich.  542,  9  N. 

W.   845,   41  Am.   Rep.   178 445 

tUpton   v.  Tribilcock,   91  U.   S.   45,  50,  23 

L.    Ed.    203 656 

Upton  v.   Vail,   6  Johns.   181,   182,   5  Am. 

Dec.    210    17,  653 

tUrban  v.  Helmick,  15  Wash.  155,  45  Pac. 

747    337 

tUrquhart  v.  Ogdensburg,  91  N.  Y.  67,  43 

-  Am.    Rep.   655 542 

Usher   v.    Railroad    Co.,    126   Pa.    206,    17 

Atl.    597,    4   L.    R.    A.    261,    12   Am.    St. 

Rep.  863 683 

tUthermohlen  v.  Boggs  Run  Co.,  50  W. 

Va.  457,  40  S.   E.  410,  55  L.  R.  A.  911, 

88  Am.    St.   Rep.   884 677 

tVallo  v.  Express  Co.,  147  Pa.  404,  23  Atl. 

594,  14  L.  R.  A.  743,  30  Am.  St.  Rep.  741  598 
tVan  v.  Pacific  Coast  Co.  (C.  C.)  120  Fed. 

699  255,  270 

Van  Bergen  v.  Van  Bergen,  3  Johns.  Ch. 

282,  8  Am.  Dec.  511 40 

Vandenburgh  v.  Truax,  4  Denio,  464,  47 

Am.  Dec.  268  90 

Vanderbilt  v.  Mathis,  5  Duer,  304 261 

Vanderbilt  v.  Turnpike  Co.,  2  N.  Y.  479, 

51  Am.  Dec.  315 603 

Vanderlip  v.  Roe,  23  Pa.  82 382 

Vanderwiele  v.  Taylor,  65  N.  Y.  341 431 

Vandiver  v.  Pollak,  97  Ala.  467,  12  South. 

473,  19  L.  R.  A.  628 176 

Vanduzor  v.  Linderman,  10  Johns.  106...  262 
tVan  Fossen  v.  Clark,  113  Iowa,  86,  84 

N.  W.  989,  52  L.  R.  A.  279 425 

tVan  Horn  v.  Van  Horn,  56  N.  J.  Law, 

318,  28  Atl.  669  296 

tVan  Inwegen  v.  Railroad  Co.,  165  N.  Y. 

625,  58  N.  E.  878 100 

Van  Lien  v.  Mfg.  Co.,  14  Abb.  Prac. 

(N.    S.)   74   568 


liv 


CASES  CITED. 


Page 
Van  Tassel  T.   Capron,  1  Denlo,  250,  43 

Am.    Dec.    667 318 

Vanuxem    v.    Burr.    151    Mass.    386,    389, 

24  N.   E.  773,  21  Am.  St.  Rep.  458 525 

tVan  Vactor  v.  State,  113  Ind.  276,  15  N. 

E.  341,  3  Am.   St.   Rep.  645 212 

Van  Vechten  v.  Hopkins,  5  Johns.  221,  4 

Am.    Dec.    339    381 

fVan  Wegeuen  v.  Cooney.  45  N.  J.  Eq.  25, 

16   Atl.    689 69 

fVan  Winkle  v.  Boiler  Co.,  52  N.  J.  Law. 

240,   19   Atl.    472 162 

Van  Wyck  v.  Aspinwall,  17  N.  Y.  190....  368 
tVan  Wyck  v.  Aspinwall,  17  N.  Y.  190...  358 
Vasse  v.  Smith,  6  Cranch,  226,  3  L.  Ed. 

207    168,  508 

Vaughan   T.    Menlove,   32   E.   C.   L.   219, 

740    90 

Vaughan  v.   Railway,  5  Hurl.   &  N.   679, 

685,    687    : 470 

Vaughan  v.  Watt,  6  Mees.  &  W.  492 521 

tVaughn  v.   Congdon,  56  Vt.  Ill,  48  Am. 

Rep.    758    229 

Vawter  v.    Railroad   Co.,   84   Mo.    679,   54 

Am.   Rep.   105 682 

Vedder  v.  Fellows,  20  N.  Y.  126 208,  223 

Venafra  v.  Johnson,  10  Bing.  301,  3  Moore 

&  S.  847;  6  Car.  &  P.  50 276 

fVeneman   v.    Jones,    118   Ind.    41,    20   N. 

E.   644,  10  Am.   St.   Rep.  100 252 

Vernon  v.  Keys,  12  East,  632 20 

tVerplanck  v.  Van  Buren,  76  N.  Y.  259.. 

28,  296 
Verrall  v.  Robinson,  2  Cromp.  M.  &  R. 

495    521 

Vicars  v.   Wilcocks,   8  East,   1 67,  110,  325 

Village  of  Delhi  v.   Youmans,   45  N.   Y. 

362,   6  Am.    Rep.   100 59 

tVillage  of  Pine  City  v.  Munch,  42  Minn. 

342,  44  N.  W.  197,  6  L.  R.  A.  763 474 

Village  of  Port  Jervls  v.  Bank,  96  N.  Y. 

550    177 

Village    of    Senaca    Falls    v.    Zalinskl,    8 

Hun,   575   177 

Villers  v.  Monsley,  2  Wils.  403 329 

tVinal  v.  Core,  18  W.  Va.  1 266,  269,  274 

Vincent  v.  Conklin,  1  E.  D.  Smith,  203..  123 

Vincent  v.  Stinehour,  7  Vt.  62 129 

tVining  v.  Baker,  53  Me.  544 512 

Vizetelly  v.   Mudie's  Library   (1900)   2  Q. 

B.    170    344 

tVogel  v.  New  York,  92  N.  T.  10,  44  Am. 

Rep.    349    609 

Von  Latham  v.  Rowan,  17  Abb.  Prac.  238, 

248    262 

fVosburg  v.   Putney,    80  Wis.   523,   50  N. 

W.    403,    14   L.    R.    A.    226,    27   Am.    St. 

Rep.   47   121 

Vredenburgh  v.  Hendricks,  17  Barb.  179..  228 
Vrooman  v.  Lawyer,  13  Johns.  339 395 

Wabash,  St  L.  &  P.  R.  Co.  v.  Shacklet, 

105  111.  364,  44  Am.  Rep.  791 , 595 

tWabash,  St.  L.  &  P.  R.  Co.  v.  Shacklet, 

105  111.  364,  44  Am.  Rep.  791 170 

tWade  v.  Chaffee,  8  R.  I.  224,  5  Am.  Rep. 

572  255 

tWahl  v.  Walton,  30  Minn.  506,  16  N.  W. 

397  258 

Wakeman  v.  Robinson,  1  Bing.  213... 129,  131 


Page 
tWakeman  T.  Wilbur,  147  N.  T.  657,  42 

N.    E.    341 69,  467 

tWakley  v.   Healey,  4  Exch.   611 353 

tWaldron   v.    Sperry,   63   W.   Va.    116.   44 

S.    E.   283 277 

tWales  v.   Miner,  89  Ind.   118 550 

tWalker  v.  Cronin,  107  Mass.  562,  564,  5G7 

71,  112,  117 

Walker  v.  Davis,  1  Gray,  506 169 

tWalker  v.  Davis,  1  Gray,  506 164 

tWalker  v.   Duncan,    68   Wis.    624,   32  N. 

W.    689    141 

Walker  v.  Milner,  4  Fost.  &  F.  745 652 

Walker   v.    Railway,    103    Mass.    10-14,    4 

Am.    Rep.    509 470 

tWalker  v.  Railroad  Co.,  165  U.   S.  593, 

17  Sup.   Ct.  421,  41  L.   R.  A.  837 435 

Wall  v.   Hoskins,  27  N.   C.   177 677 

tWall  v.  Lit,  195  Pa.  375,  46  Atl.  4 130 

Wallace  v.   Morss,   5  Hill,   391 168 

Waller  v.  Railroad  Co.,  32  Law  J.  Exch. 

205    621 

tWalsh  v.  Railroad  Co.,  160  Mass.  571,  36 

N.  E.  584,  39  Am.  St.  Rep.  514;    145  N. 

Y.   301,  39  N.   E.  1068,  27  L.   R.  A.   724, 

45  Am.   St.  Rep.  615 577,  678 

Walter  v.    Selfe,   4   De   Gex  &   S.   323;   4 

Eng.  Law  &  Eq.   18 419,  447 

tWalton  v.   Car  Co.,  139  Mass.  556,  2  N. 

E.    101 606 

Wamsley   v.    Steamship    Co.,    63    N.    Y. 

Supp.    761 500 

Wanser  v.   Wyckoff,  9  Hun,  178 272 

Ward  v.   Conatser,   4  Baxt.  64 127 

Ward   v.   Macauley,   4   Term   R.   480,    489 

495,    512 
Ward    v.    Railroad    Co.,    U    Abb.    Prac. 

(N.    S.)    411 569 

tWard   v.    Railroad   Co.,    96    Me.    136,    51 

Atl.    947 569,    571 

tWard  v.  Reasor,  98  Va.  399,  36  S.  E.  470  280 

Ward  T.    Weeks,   7  Bing.   211 324 

tWard  v.   Weeks,   7  Bing.   211 327 

tWarder,    Bushnell    &    Glessner    Co.    v. 

Whittish,   77  Wis.   430,   46  N.   W.   540...  661 
fWarnock  v.  Mitchell  (C.  C.)  43  Fed.  428  341 

Warren   v.    Brown   (1902)   IK.    B.    15 6 

tWarren    v.    Kelley,    80   Me.    512,    531,    15 

Atl.    49    241 

tWarren    v.    Railway,    70   N.    H.    352,    47 

Atl.    735    588 

Warren   v.   Warren,   1  Cromp.    ML    &   R. 

250    378 

Washburn    T.    Cooke,    3   Denio,   110,   112 

367,  377 
fWashington  C.  &  A.   Turnpike  v.   Case, 

80  Md.   36,   30  Atl.   571 130 

tWashington  &  G.  R.  Co.  v.  Hickey,  166 

U.    S.    521,   17   Sup.    Ct.    661,    41   L.    Ed. 

1101    138 

tWashington  &  G.  R.  Co.  v.  McDade,  135 

U.  S.  554,  10  Sup.  Ct.  1044,  34  L.  Ed.  235  614 

tWason  v.  Walter,  L.   R.   4  Q.    B.   73 373 

tWatkin  v.   Hall,   L.   R.   3  Q.  B.   396 354 

Watkins  v.  Lee,  5  Mees.   &  W.  270 276 

tWatson  v.  Crandall,  78  Mo.  583 669 

Watson  v.  Earle  of  Charlemont,  12  Adol. 

&   E.    (N.    S.)    856 671 

Watson   v.    Vanderlash,    Het.   69 320 

Watson  v.  Watson,  9  Conn.  140,  23  Am. 

Dec.    324    547 


CASES  CITED. 


Page 

tWatters  T.  Smoot,  S3  N.  C.  315 352 

t  Watts  v.   Cummins,   59  Pa.  84 655 

Watts  v.  Thomas,  2  Bibb,  458 681 

Weatherston  v.  Hawkins,  1  Term  R.  110 

339,   356 

Weaver  v.  Bush,  8  Term  R.  78 197,  198,  393 

tWeaver    v.    Devendorf,    3    Denlo,    117...  538 

Weaver  v.  Ward,  Hob.  134 125,  126,  131 

fWebb    v.    Drake,    52    La.    Ann.    290,    26 

South.    791    300 

Webb  v.   Railroad  Co.,  49  N.  Y.  420,  10 

Am.     Rep.     389 77,     90 

Webber  v.   Gage,  39  N.  H.  182 422 

Webber  v.   Gay,  24  Wend.   485 547 

tWeeks  v.   Currier,   172  Mass.   53,   51  N. 

B.   416   644 

Weidner  v.   Rankin,  26  Ohio  St.   522 680 

fWeil   v.    Altenhofen,    26    Wis.    708 307 

tWell    v.    Railroad    Co.,    119    N.    Y.    147, 

23  N.   E.   487 582 

Weir  v.  Bell,  3  Exch.  Div.  238 635,  637 

tWelch    v.    Stowell,    2    Doug.    332 482 

Weller  v.   Baker,   2  Wils.   414 39 

Wells  v.   Howell,  19  Johns.   385 415 

Wells  v.   Sisson,   14  Hun,   267 228 

Wells   v.    Watling,   2  W.   Bl.    1233 39 

tWelsh  v.   Bell,   32  Pa.   12 493 

tWelsh    v.    Cochran,    63   N.    Y.    181,    184, 

20  Am.  Rep.  519 184,  545 

Wendell  v.  Railroad  Co.,  91  N.  Y.  420...  575 

Wennbak  v.  Morgan,  20  Q.   B.  D.  635 344 

Wentworth  v.   Bullen,   9   Barn.   &  C.  840  288 
tWenzlick  v.   McCotter,   87  N.  Y.  122,  41 

Am.    Rep.    358 463 

Wesson  v.  Iron  Co.,  13  Allen,  95,  90  Am. 

Dec.  181  446 

tWest   v.    Cabell,   153    U.    S.   78,   14   Sup. 

Ct.  752,  38  L.  Ed.  643 248 

West  v.  Smallwood,  3  M.  &  W.  418;  Horn 

&    Hurlst.    117 235,    236 

tWestbrook  v.  Mize,  35  Kan.  299,  10  Pac. 

881    171 

tWest  Chicago  St.   R.   Co.  v.  Liderman, 

187  111.   463,   58  N.   E.   367,   32  L.   R.   A. 

655,   79   Am.   St.    Rep.-  226 600 

Westcott  v.   Middleton,  43  N.  J.  Eq.  478, 

11   Atl.    490 447 

Western  Co.  v.  Lawes  Co.,  L.  R.  9  Exch. 

218    386 

tWestern  Counties   Manure  Co.   v.   Man- 
ure Co.,   L.   R.   9  Exch.   218 25 

Westmore   v.    Greenbank,    Willes,    577 34 

fWetherbee   v.    Partridge,   175    Mass.    185, 

55  N.    E.   894,   78  Am.    St.    Rep.   486 610 

Wetherell   v.    Clerkson,   12   Mod.   597 387 

Wetmore   v.    Mellinger,    64   Iowa,   741,   18 

N.   W.   870,   52  Am.   Rep.   465 283,   285 

Whaler  v.  Ahl,  29  Pa.  98 439 

Whaley  v.    Laing,   2  H.    &  N.   476,   3  H. 

&    N.    675 445 

tWhaley  v.  Lawton,  62  S.  C.  91,  40  S.  E. 

128,  56  L.  R.  A.  649 235 

Wheatley  v.   Baugh,   25  Pa.   528,   64  Am. 

Dec.    721 ; 59 

tWheatley  v.  Baugh,   25  Pa.  528,  64  Am. 

Dec.    721    60 

Wheeler  v.   Brant,   23  Barb.  324 484,   486 

tWheeler    v.    Lawson,    103    N.    Y.    40,    8 

N.     E.    360 495 

tWheeler  v.   Nesbitt,   24  How.   544,  16  L. 

Ed.    765 266 


Page 

tWheeler  v.  Wheeler,  33  Me.  347 515 

Wheeler  v.  Whiting,  9  Car.  &  P.  262..  258 
Wheeler  &  Appleton's  Case,  Godb.  340..  341 
tWheelock  v.  Jacobs,  70  Vt.  162,  167,  40 

Atl.  41,  43  L.  R.  A.  105,  67  Am.  St.  Rep. 

659   59,   60 

Wheelock  v.  Wheelwright,  5  Mass.  104..  498 
tWhllden  v.  Bank,  64  Ala.  1,  38  Am. 

Rep.    1 141 

tWhipple  v.  Fuller,  11  Conn.  582,  29  Am. 

Dec.     330 287 

tWhitbourne  v.   Williams  (1901)   2  K.   B. 

722    553 

tWhite  T.  Carr,  71  Me.  555,  36  Am.  Rep. 

533    274 

White   v.    Carroll,   42   N.    Y.   161,    1   Am. 

Rep.    503    26 

White   v.    Lang,    128    Mass.    598,    35   Am. 

Rep.    402    81 

tWhite  v.   Mellin   (1895)   A.  C.  154 387 

tWhite  v.  Morse,  139  Mass.  163,  29  N.  B. 

539     535 

White  v.  Nicholls,  3  How.  266,  291,  11  L. 

Ed.  591 359 

tWhite  v.  Nicholls,  3  How.  266,  11  L.  Ed. 

591    358,    375 

tWhite  v.   Phelps,  12  N.   H.   382.... 515 

Whitehead  v.   Mathaway,   85  Ind.  85 196 

Whitehouse    v.    Canning    Co.,    2    L.    J. 

Exc.    25    67 

Whiteley  v.  Adams,  15  C.  B.   (N.  S.)  393  359 

White's  Case,  1  Burr.  333 481 

Whitfleld  v.  Le  De  Spencer,  Cowp.  754  543 
tWhitlock  T.  Uhle,  75  Conn.  423,  53  Atl. 

891    6 

Whitney  v.  Bartholomew,  21  Conn.  213..  421 
Whittaker  v.  Bradley,  7  Dowl.  &  R.  649  333 

Widrig  v.   Oyer,  13  Johns.  124 302 

Wier's  Appeal,   74  Pa.   230 423,   450 

tWier's  Appeal,  74  Pa.  230 425,  452 

tWiggins  v.  Hathaway,  6  Barb.  632 543 

Wiggins  v.  U.   S.,  3  Ct.  Cl.  412 183 

tWilcox    v.    Moore,    69    Minn.    49,    71   N. 

W.    917    373 

tWilcox  v.  Telegraph  Co.,  176  N.  Y.  115, 

68  N.    E.   153 661 

tWildee   v.    McKee,    111   Pa.    335,    2   Atl. 

108,  56  Am.   Rep.   271 296 

tWilds  v.  Railroad  Co.,  24  N.  Y.  430....  569 

Willard  v.   Cambridge,  3  Allen,  574 465 

tWillard  v.  Holmes,  142  N.  Y.  492,  37  N. 

E.    480    284 

Willard    v.    Holmes,    Brook    &    Haydens 

Co.,  142  N.  Y.   492,  37  N.   E.  480 286 

tWilley  v.   Carpenter,   64  Vt.  212,  23  Atl. 

630,   15  L.    R.   A.   853 196,   205 

Williams  v.  Breedon,  1  Bos.  &  P.  329. .  679 
tWilliams  v.  Casebeer,  126  Cal.  77,  58 

Pac.    380    274 

tWilliams  T.  Fuller  (Neb.)  94  N.  W.  118 

331,  383 
tWilliams  v.  Hayes,  157  N.  Y.  541,  52  N. 

E.  589,  43  L.  R.  A.  253,  68  Am.  St.  Rep. 

797     126 

tWilliams  v.  Hays,  143  N.  Y.  442,  38  N. 

E.    449,    26    L.    R.    A.    153,    42   Am.    St. 

Rep.    743    126 

Williams  v.  Hill,  19  Wend.  305 325 

tWilliams  v.  Holdredge,  22  Barb.  396....  313 
tWilliams  v.  Holmes,  Booth  &  Haydens, 

142  N.  Y.  492,  37  N.  B.  480 263 


Ivi 


CASES   CITED. 


Page 

tWilllams  V.  Ives,  26  Conn.  568 402 

tWilliams  v.  Le  Bar,  141  Pa.  149,  21  Atl. 

525  180 

Williams  T.  Merle,  11  Wend.  80,  25  Am. 

Dec.  604  517 

Williams  v.  Safford,  7  Barb.  309 409 

Williams  v.  Smith,  108  E.  C.  L.  596 245 

tWilliams  v.  Spencer,  5  Johns.  352 546 

tWilliams  v.  Weaver,  75  N.  Y.  30 538 

tWilliamson  v.  Freer,  L.  R.  9  C.  P.  393  344 
tWilliamson  v.  Russell,  39  Conn.  411..:.  522 

Wills  v.  Noyes,  12  Pick.  324 266 

tWilly  T.  Mylledy,  14  R.  I.  28 32 

tWilms  v.  Jess,  94  111.  464,  34  Am.  Rep. 

242  51 

Wilson  v.  Barker,  1  Nev.  &  M.  409,  4 

Barn.  &  Adol.  614 183 

tWilson  v.  Dubois,  35  Minn.  471,  29  N.  * 

W.  68,  59  Am.  Rep.  335 71 

Wilson  v.  Mayor,  etc.,  1  Denio,  595,  598, 

43  Am.  Dec.  719 538,  540 

tWilson  v.  New  Bedford,  108  Mass.  261, 

265,  11  Am.  Rep.  352 59 

tWilson  v.  Noonan,  35  Wis.  321 354 

Wilson  v.  Reed,  3  Johns.  17B 615 

Wilson  v.  Robinson,  6  How.  Prac.  110..  228 
Wilson  v.  Tumman,  6  Man.  &  G.  236,  242  183 

Wilson  v.  Waddell,  2  App.  Cas.  95 54 

Wilt  v.  Welsh,  6  Watts,  9 168 

Wilton  v.  Webster,  7  Car.  &  P.  198 550 

tWinchester  v.  Everett,  80  Me.  535,  15 

Atl.  596,  1  L.  R.  A.  425,  6  Am.  St.  Rep. 

228  246 

tWinn  v.  Abeles,  35  Kan.  85,  10  Pac. 

449,  57  Am.  Rep.  138 61 

tWinn  v.  Hobson,  54  N.  Y.  Super.  Ct. 

330  260 

tWinship  v.  Neale,  10  Gray,  382 512 

Winsmore  v.  Greenbank,  Willes,  577,  580, 

583 22,  28,  461 

tWinter  v.  Atkinson,  92  111.  App.  162 203 

tWinter  v.  Sumvalt,  3  H.  &  J.  38 327 

tWinterbottom  v.  Lord  Derby,  L.  R.  2 

Ex.  316  69 

Winterbottom  v.  Wright,  10  Mees.  &  W. 

109  160 

tWinterbottom  v.  Wright,  10  M.  &  W.  109  25 
Winterbourne  v.  Morgan,  11  East,  396..  392 
fWinters  v.  Railroad  Co.,  99  Mo.  509,  12  S. 

W.  652,  6  L.  R.  A.  536,  17  Am.  St.  Rep. 

591  588 

Wintringham  v.  Lafoy,  7  Cow.  735.. 492,  494 
tWisconsin  Cent.  R.  Co.  v.  Ross,  142  111. 

9,  31  N.  E.  412,  34  Am.  St.  Rep.  49 170 

Witte  v.  Hague,  2  Dowl.  &  R.  33 153 

tWolf  v.  Kilpatrick,  101  N.  Y.  146,  4  N. 

E.  188,  54  Am.  Rep.  672 455 

Wolfe  v.  Pearson,  114  N.  C.  621,  19  S. 

E.  264  479 

Womersley  v.  Church,  17  L.  T.  (N.  S.) 

190  445 

tWood  v.  Amory,  105  N.  Y.  278,  11  N. 

E.  696  648 

Wood  v.  Graves,  144  Mass.  365,  366,  11  N. 

E.  567,  59  Am.  Rep.  95 288,  293 

tWood  v.  Graves,  144  Mass.  365,  11  N.  E. 

567,  59  Am.  Rep.  95 292 

tWood  v.  Leadbitter,  13  Mees.  &  W.  838  407 

Wood  v.  Manley,  11  Adol.  &  E.  34 405 

Wood  v.  Sutcliffe,  2  Sim.  (N.  S.)  165....  422 
Wood  T.  Waud,  13  Jur.  472,  3  Exch.  748  442 


Page 

Woodard  v.  Dowsing,  2  Man.  &  R.  74 330 

Woodard  v.  Railroad  Co.,  10  Ohio  St. 

121  682 

tWooden  v.  Railroad  Co.,  126  N.  Y.  10, 

26  N.   E.  1050,  13  L.  R.  A.  458,  22  Am. 

St.  Rep.  803 678,  683,  684 

tWoodman  v.  Railroad  Co.,  149  Mass. 

335,   21   N.    E.    482,   4   L.    R.    A.    213,   14 

Am.  St.  Rep.  427 610 

Woodman  v.  Tufts,  9  N.  H.  92 462 

Woodruff  v.  Bowen,  136  Ind.  491,  34  N. 

E.  1113,  22  L.  R.  A.  198 558 

Woodside  v.  Adams,  40  N.  J.  Law,  417..  505 
tWoodworth  v.  Mills,  61  Wis.  44,  20  N. 

W.  728,  50  Am.  Rep.  135 280 

tWoodyear  v.  Schaefer,  57  Md.  1,  40  Am. 

Rep.  419 442 

Woolcott  v.  Goodrich,  5  Cow.  714 303 

Wooley  v.  Batte,  2  Car.  &  P.  417 175 

Woolf  v.  Chalker,  31  Conn.  121,  130,  81 

Am.  Dec.  175 485 

tWoolf  v.  Chalker,  31  Conn.  127,  81  Am. 

Dec.  175  488 

tWoolsey  v.  Morris,  96  N.  Y.  311,  315..  547 

tWren  v.  Weild,  L.  R.  4  Q.  B.  730 385 

tWright  v.  Brown,  67  N.  Y.  1 656 

i Wright  v.  Express  Co.  (C.  C.)  80  Fed. 

85  200 

Wright  v.  Howard,  1  Sim.  &  S.  190 40 

Wright  v.  Leonard,  11  C.  B.  (N.  S.)  258  168 
tWright  v.  Lothrop,  149  Mass.  385,  21 

N.  E.  963  379 

tWright  v.  Marvin,  59  Vt.  437,  9  Atl.  601  402 
tWright  v.  Railroad  Co.,  4  Allen,  283..  582 

Wright  v.  Ramscot,  1  Saund.  85 489 

Wright  v.  Wllcox,  19  Wend.  349,  32  Am. 

Dec.  507  603 

Wyatt  v.  Harrison,  3  B.  &  Ad.  871.. ..47,  53 

Wyatt  v.  Williams,  43  N.  H.  102 626 

tWykoff  v.  Stevenson,  46  N.  J.  Law,  326  522 
jWyman  v.  Railroad  Co.,  34  Minn.  210, 

25   N.   W.    349 209 

tYandes  v.   Wright,   66  Ind.   319,   32  Am. 

Rep.  109 51 

Yates  v.  Joyce,  11  Johns,  136,  140.  .17,  19,  20 
Yates  v.  Lansing,  5  Johns.  282,  291;  9 

Johns.  396,  6  Am.  Dec.  290 528,  538 

tYeaton  v.  Railroad  Corp.,  135  Mass.  418  614 

York  v.  Davis,  11  N.  H.  241 415 

York  v.  Johnson,  116  Mass.  482 361,  362 

Youmans  v.  Smith,  153  N.  Y.  214,  47  N. 

E.  265  944 

Young  v.  ,  1  Ld.  Raym.  725.. 392,  409 

Young  v.  Clegg,  93  Ind.  371 344 

tYoung  v.  Distillery  Co.  (1893)  A.  C.  691  442 
tYoung  v.  Leach,  27  App.  Di7.  293,  50 

N.  Y.  Supp.  670 28 

tYoung  v.  Miller,  3  Hill,  21 304 

tYoung  v.  Muhling,  48  App.  Div.  617,  63 

N.  Y.  Supp.  181 167 

tYoung  v.  Stone,  33  App.  Div.  261,  53  N. 

Y.  Supp.  656 547 

Youngstown  v.  Moore,  30  Ohio  St.  133. .  680 
Yundt  v.  Hartrunft,  41  111.  9 550 

tZieman  v.  Eevator  Co.,  90  Wis.  497,  63 
N.  W.  1021 156 

tZorn  v.  Haake,  75  Hun,  235,  27  N.  Y. 
Supp.  98 400 

tZwack  v.  Railroad  Co.,  160  N.  Y.  362, 
54  N.  E.  785 677 


LEADING   CASES 


UPON  THE 


GENERAL    PRINCIPLES. 


No  tort  committed,  unless  a  legal  right  or  legal  duty  is 
violated. 

(68  111.  478.) 

GUEST  et  al.  v.  REYNOLDS  (in  part). 
(Supreme  Court  of  Illinois.    September  Term,  1873^ 

1.  ADJOINING  LAND-OWNERS—OBSTRUCTION  OF  LIGHT  AND  AIR. 

An  owner  of  land  who  erects  thereon  a  fence  or  wall  which  obstructs 
the  access  of  light  and  air  to  a  house  on  adjacent  land,  and  also  obstructs 
the  view  from  such  house,  is  not  liable  in  damages  for  the  obstruction  to 
the  owner  of  such  adjoining  premises,  since  no  legal  right  to  light,  air, 
and  prospect  exists,  in  the  absence  of  proof  that  such  a  right  has  been 
acquired  by  grant  or  prescription ;  nor  is  such  fence  or  wall,  not  being 
constructed  of  offensive  materials,  to  be  deemed  a  nuisance. 

2.  SAME— "ANCIENT  LIGHTS." 

It  seems  that  the  doctrine  of  "ancient  lights"  is  not  applicable  In  this 
country. 

Appeal  from  Circuit  Court,  Cook  County;   John  G.  Rogers,  Judge. 

BREESE,  C.  J.  This  was  an  action  on  the  case,  brought  to  the 
circuit  court  of  Cook  county,  to  recover  damages  for  an  alleged  ob- 
struction by  defendants  of  the  free  use  of  the  light  and  air  passing 
laterally  over  the  premises  of  defendants  to  plaintiff's  premises. 

The  declaration  contains  two  counts,  in  substance  as  follows :  Plain- 
tiff, after  averring  his  residence  on  a  particular  lot,  73  South  Sanga- 
mon  street,  in  Chicago,  in  a  house  having  doors,  windows,  and  views 
of  the  street,  through  which  light,  air,  and  views  had  and  ought  to 
enter  into  the  dwelling-house,  and  the  views  should  not  have  been 
obstructed,  and  the  use  of  the  light  and  air  and  views  should  not  have 
been  obstructed,  and  ought  to  be  used  by  plaintiff  and  his  family,  for 
CHASE  (2o  ED.) — 1 


2  LAW  OF  TORTS. 

the  wholesome  use  and  occupancy  thereof,  avers:  Yet  the  said  de- 
fendants, well  knowing  the  premises,  but  contriving,  wrongfully  and 
unjustly  intending,  to  injure  the  plaintiff  and  his  family,  and  to  de- 
prive them  of  the  use  of  said  doors,  windows,  and  views,  and  to  in- 
commode him  in  the  use  and  enjoyment  thereof,  and  to  annoy  plain- 
tiff in  his  use  and  possession  and  enjoyment  of  said  premises,  on,  etc., 
wrongfully  and  injuriously  caused  and  erected  and  raised  a  high 
board  fence,  and  caused  to  be  erected,  constructed,  and  raised  on  the 
north  part  of  said  lot  and  dwelling-house  and  lot,  and  adjoining  there- 
to, a  high  board  obstruction.  The  obstruction  was  made  and  con- 
structed next  to  the  north  line  of  the  house  and  lot  No.  73  South 
Sangamon  street.  It  was  made  upon  the  south  line  of  an  alley  next 
north  of  said  house  and  lot,  and  close  adjoining,  and  was  so  made 
and  constructed,  and  is  now  standing,  and  in  such  close  proximity, 
that  it  hides  the  original  fences.  It  nowhere  protects  the  alley,  and 
it  is  so  raised  and  constructed,  and  of  such  height,  made  at  certain 
places  in  its  construction,  and  so  near  to  the  windows,  that  it  wrong- 
fully and  injuriously  darkens  the  said  dwelling-house,  obstructs  the 
light  to  said  windows,  and  is  so  made  as  to  obstruct  the  view  to  said 
street,  and  in  fact  is  so  constructed,  wrongfully  and  injuriously,  as 
aforesaid,  as  to  interfere  with  the  use  of,  and  the  light  and  air  and 
views  from,  said  dwelling  house,  and  thereby  renders  said  dwelling- 
house  of  but  little  use  to  plaintiff  and  his  family;  and  defendants 
have  wrongfully  and  injuriously  kept  and  continued  said  high  board 
fence  obstruction,  etc.,  by  them  erected,  as  aforesaid,  for  a  long  space 
of  time,  to-wit,  etc.;  and  the  same  is  now  continued,  by  means  of 
which  premises  the  said  dwelling-house,  with  its  appurtenances,  are 
greatly  darkened  and  injured,  and  they  continued  darkened  and  in- 
jured, and  the  light,  air,  and  views  were  and  are  hindered  and  pre- 
vented from  coming  into  and  through  the  said  windows,  into  said 
dwelling-house,  and  the  same  hath  thereby  been  rendered,  and  is,  close, 
uncomfortable,  unwholesome,  and  measurably  unfit  for  habitation ;  and 
plaintiff  and  his  family  have  thereby  been,  and  still  are,  greatly  an- 
noyed and  incommoded  in  the  use,  possession,  and  enjoyment  of  said 
dwelling-house  and  lot,  with  the  appurtenances,  to-wit,  etc. ;  to  the 
damage,  etc.  The  second  count,  omitting  the  formal  and  introductory 
parts,  avers:  Yet  the  said  defendants,  well  knowing  the  premises, 
but  contriving,  etc.,  and  intending  to  injure  and  prejudice  plaintiff, 
and  to  deprive  him  of  the  use,  benefit,  and  enjoyment  of  the  said  win- 
dows, and  to  annoy  and  incommode  him  in  the  use,  possession,  and 
enjoyment  of  said  dwelling-house,  with  the  appurtenances,  heretofore, 
to-wit,  etc.,  (with  a  continuando,)  wrongfully,  maliciously,  willfully, 
and  injuriously  greatly  darkened  said  windows,  and  hindered  and  pre- 
vented the  light  and  air  from  coming  and  entering  into  and  through 
said  windows,  into  said  dwelling-house  and  premises,  and  the  samf 
have  thereby  been  rendered,  and  are,  uncomfortable,  unwholesome 
and  unfit  for  habitation,  and  the  plaintiff  thereby  has  been,  and  is, 
greatly  annoyed  and  incommoded  in  the  use,  possession,  and  enjoy- 


GENERAL  PRINCIPLES.  5 

ment  of  said  dwelling-house  and  premises,  with  the  appurtenances,  to 
his  damage,  etc.  The  plea  was,  not  guilty.  Under  instructions  from 
the  court,  the  plaintiff  had  a  verdict  for  $838,  a  portion  of  which  was 
remitted,  and  judgment  rendered  for  $500.  To  reverse  this  judgment 
defendants  appeal. 

We  have  copied  literally  the  counts  of  the  declaration,  in  order  that 
the  precise  nature  of  the  action  may  be  seen  and  understood.  Ap- 
pellee claims  that  the  gravamen  of  the  action  is  not  for  obstructing 
light  and  air  and  views,  but  it  is  for  erecting  an  unsightly  fence  and 
of  offensive  materials.  The  logic  of  the  narr.  certainly  is  that,  plain- 
tiff having  the  right  to  use  the  light  and  air  and  views,  he  has  been 
deprived  of  the  same  by  the  erection  of  the  fence,  and  by  which  erec- 
tion his  dwelling  has  been  darkened,  rendered  unwholesome,  and  unfit 
for  habitation.  The  latter  is  alleged  as  a  consequence  of  the  erection 
of  the  fence,  and  the  right  to  build  the  fence  is  denied,  because  of 
plaintiff's  right  to  have  free  course  for  light  and  air,  and  an  unob- 
structed view  from  his  windows.  The  gravamen  of  the  action  most 
clearly  is  the  obstruction  of  light,  air,  and  view,  the  rest  being  con- 
sequences, merely,  of  the  obstruction.  It  is  not  alleged  the  materials 
which  composed  the  obstruction — the  fence — were  of  an  offensive  na- 
ture, or  that  the  air,  in  passing  through  or  over  the  fence,  became 
charged  with  offensive  matter.  The  averment  simply  is,  by  erecting 
a  fence,  the  passage  of  light  and  air  has  been  obstructed,  by  which 
the  dwelling  has  been  darkened,  rendered  unwholesome  and  unfit  for 
habitation. 

In  this  view  of  the  nature  of  the  action,  the  first  question  to  be  de- 
termined is,  were  defendants'  lots,'  on  the  south  boundary  of  which 
they  erected  this  fence,  servient  lots?  In  other  words,  had  the  plain- 
tiff any  right  to  the  passage  of  light  and  air  laterally  over  defendants' 
lots,  to  plaintiff's  doors  and  windows,  and  to  an  unobstructed  view 
of  an  adjacent  street?  If  he  had,  whence  does  he  derive  it?  This  is 
for  him  to  show,  and  he  has  not  shown  it.  He  shows  no  right  by 
prescription,  by  use  for  20  years,  if  such  use  could  be  available,  and 
no  grant  from  any  one.  The  owner  of  the  premises  erected  the  dwell- 
ing-house occupied  by  plaintiff  within  two  feet  of  the  south  line  of 
defendants'  premises.  We  have  been  referred  to  no  law  forbidding 
defendants  from  erecting  a  fence  on  the  line  of  their  own  land.  Ad- 
mit the  erection  does  darken  the  rooms  of  his  neighbor;  that  it  does 
render  them  close  and  uncomfortable,  and  annoy  and  incommode  him, 
— the  defendants  have  only  exercised  a  right  belonging  to  them  by 
building  the  fence.  This  is  not  a  case  of  ancient  lights.  The  plain- 
tiff insists  it  is  for  a  nuisance  arising  out  of  a  violation  of  the  maxim, 
sic  utere  tuo  ut  alienum  non  laedas.  It  is  not  denied  that,  by  the 
common  law,  an  action  on  the  case  lies  for  a  nuisance  to  the  hab- 
itation or  estate  of  another,  many  instances  of  which  are  readily 
found  in  the  books.  The  law  unquestionably  is,  if  a  man  erect  any- 
thing offensive  so  near  the  house  of  another  that  it  becomes  useless 
thereby,  case  lies;  as,  a  limekiln,  a  dye-house,  a  tallow  furnace,  a 


4  LAW  OF  TORTS. 

privy,  a  brew-house,  a  tan-vat,  a  smelting-house,  and  the  like. 
In  all  the  cases  where  it  was  held  the  action  would  lie,  a  positive 
right  was  invaded.  If  this  was  a  case  of  ancient  lights,  the  maxim 
would  apply.  But,  plaintiff  having  established  no  right,  he  cannot 
claim  to  be'  injured  or  damnified,  as  no  right  is  infringed, — legally 
speaking,  there  is  no  injury  or  damage.  The  defendants  cannot  be 
charged  with  so  using  their  own  property  as  to  injure  another.  By 
the  fence  the  plaintiff  has  been  deprived  of  the  use  of  that  which  did 
not  belong  to  him,  for  light  and  air  are  not  the  subjects  of  property 
beyond  the  moment  of  actual  occupancy.  Mahan  v.  Brown,  13  Wend. 
261,  38  Am.  Dec.  461;  Parker  v.  Foote,  19  Wend.  309. 

That  the  defendants  had  the  right  to  build  a  fence  50  feet  high,  on 
their  own  land,  or  a  high  wall  which  should  have  the  effect  to  de- 
prive plaintiff  of  light  and  air,  and  obstruct  his  view,  the  plaintiff 
himself  showing  no  prescriptive  or  other  adverse  right,  is  settled  by 
authority.  The  case  of  Gerber  v.  Grabel,  16  111.  217,  is  referred  to 
on  this  question.  There  the  declaration  did  not  prescribe  for  ancient 
lights,  but  declared  generally,  as  in  this  case,  that  plaintiff  was  pos- 
sessed of  the  house,  and  ought  to  enjoy  a  right  to  the  light  and  air 
through  the  windows.  The  court  held  the  declaration  was  sufficient 
to  admit  proof  of  the  right,  whether  it  arises  upon  a  prescription,  by 
contract,  or  otherwise  by  estoppel.  The  English  doctrine  was  fully 
examined  and  admitted  by  one  of  the  judges,  Mr.  Justice  Scates  de- 
livering the  opinion,  that  the  rule  in  England  was  the  presumptive 
prescription  of  20  years,  applied  in  analogy  to  the  statute  of  limita- 
tions. But,  he  said,  such  was  not  the  rule  of  the  common  law  of 
this  state;  and,  discussing  the  older  authorities,  from  Rolle's  Abridg- 
ment, through  Coke,  down  to  Croke's  Eliz.,  to  the  accession  of  James 
I.,  the  learned  judge  reached  the  conclusion  that  a  prescription  of  20 
years  for  the  easement  of  light  and  air  was  not  applicable  to  the  cir- 
cumstances of  this  state,  unsettled  and  unimproved  as  it  is;  that  the 
doctrine  cannot  be  traced  further  back  than  the  twenty-first  year  of 
James  I.  As  we  understand  this  opinion,  the  right  to  the  free 
passage  of  light  and  air  must  be  established  for  a  length  of  time 
whereof  the  memory  of  man  runneth  not  to  the  contrary, — that  is, 
from  time  immemorial;  and  this  was  the  common  law,  as  understood 
prior  to  the  accession  of  James  I.  Another  distinguished  judge,  Mr. 
Justice  Caton,  whose  ability  and  great  legal  knowledge  have  never 
been  questioned,  understood  the  first  section  of  chapter  62,  Rev.  St., 
adopted  the  common  law  of  England  as  administered  in  Westminster 
Hall  at  the  time  the  provision  was  originally  adopted  in  this  state, 
and  the  British  statutes  in  aid  of  the  common  law  prior  to  the  fourth 
year  of  James  I.,  except  as  provided  in  that  section;  and  it  was  ad- 
mitted that,  by  the  well-settled  rule  of  the  common  law,  as  it  has  been 
understood  and  administered  by  the  English  courts  for  many  years 
past,  20  years'  uninterrupted  and  unquestioned  enjoyment  of  lights 
constitutes  them  ancient  lights,  in  the  enjoyment  of  which  the  owner 
shall  be  protected.  This  is  the  only  case  in  this  court  we  have 


GENERAL  PRINCIPLES.  5 

been  referred  to  touching  this  subject,  and  from  it  it  will  be  seen 
the  law  has  not  been  authoritatively  declared,  enough  only  appearing 
in  the  record  to  dispose  of  the  case  then  pending. 

But  be  the  law  20  years,  or  time  immemorial,  in  which  to  prescribe, 
it  cannot  avail  the  plaintiff  in  this  action,  as  he  established  neither. 

The  complaint  in  this  declaration  is  for  erecting  an  obstruction,  by 
which  light  and  air  were  prevented  from  coming  into  plaintiff's  house, 
rendering  the  rooms  dark,  unwholesome,  and  uninhabitable.  The 
point  is  that  defendants  had  a  right  to  erect  the  fence,  which  was  the 
obstruction  alleged.  The  plaintiff,  showing  no  right  to  the  free  pas- 
sage of  light  and  air,  must  submit  to  this  erection,  in  the  absence  of 
any  allegation  that  the  fence  was  made  of  unfit  materials,  the  odor 
from  which  was  of  a  noxious  nature,  which,  penetrating  the  house 
of  plaintiff,  rendered  it  unwholesome.  To  entitle  him  to  claim  dam- 
ages for  the  erection  of  a  fence,  by  which  his  dwelling  was  darkened 
and  made  unwholesome,  he  must  show  a  prescriptive  right  to  the  use 
of  the  light  and  air,  which  he  does  not  pretend.  He  cannot  make  one 
case  in  his  declaration,  and  another  and  different  case  by  his  proofs. 
He  declares  against  the  defendants  that  he  is  possessed  of  a  dwelling- 
house,  with  doors  and  windows,  to  and  through  which  light  and  air 
ought  to  come  freely,  but  you,  the  defendants,  have  obstructed  their 
free  passage,  by  which  my  house  is  darkened,  rendered  unwholesome, 
and  unfit  for  habitation.  This  is  his  whole  case,  as  he  states  it  in  the 
declaration.  We  submit,  it  is  not  competent  for  him  on  the  trial,  to 
prove  that  the  materials  out  of  which  the  fence  was  made  were  filthy 
and  unfit,  or  that  they  created  an  atmosphere  in  the  house  which  was 
noxious,  for  that  is  an  independent  cause  of  action. 

Now,  on  the  question  of  prescription.  As  it  is  an  open  question 
in  this  court,  we  are  inclined  to  adopt  the  views  held  and  so  well  ex- 
pressed by  the  supreme  court  of  the  state  of  New  York  in  Parker  v. 
Foote,  supra.  In  commenting  on  the  doctrine  as  received  by  the  Brit- 
ish courts,  the  court  say:  "They  tell  us  a  man  may  build  on  the 
extremity  of  his  own  land,  and  that  he  may  lawfully  have  windows 
looking  out  upon  the  land  of  his  neighbor."  The  court  say  the  reason 
why  he  may  lawfully  have  such  windows  should  be  because  he  does 
his  neighbor  no  wrong;  and  yet,  somehow  or  other,  by  the  exercise 
of  lawful  right  in  his  own  land  for  20  years,  he  acquires  a  beneficial 
interest  in  the  land  of  his  neighbor.  The  original  proprietor  is  still 
seised  of  the  fee,  with  the  privilege  of  paying  taxes  and  assessments ; 
but  the  right  to  build  on  the  land,  without  which  city  and  village  lots 
are  of  little  or  no  value,  has  been  destroyed  by  a  lawful  window.  How 
much  land  can  thus  be  rendered  useless  to  the  owner  remains  yet  to  be 
settled.  And  the  court  further  say  there  is  no  principle  upon  which  the 
modern  English  doctrine  on  the  subject  of  lights  can  be  supported.  It 
is  an  anomaly  in  the  law.  It  may  do  well  enough  in  England,  and  has 
been  sanctioned,  with  some  qualification,  by  act  of  parliament,  but  it  can- 
not be  applied  to  the  growing  cities  and  villages  of  this  country  without 
working  the  most  mischievous  consequences,  and  has  never  been 


6  LAW  OF  TORTS. 

deemed  a  part  of  our  law.  In  Myers  v.  Gemmel,  10  Barb.  537,  this 
case  is  approved.  In  3  Kent's  Comm.  573,  it  is  said  the  English  doctrine 
is  not  much  relished  in  this  country,  owing  to  the  rapid  changes  and 
improvements  in  our  cities  and  villages.  A  prescriptive  right,  spring- 
ing up  under  the  narrow  limitation  in  the  English  law,  to  prevent 
obstructions  to  window  lights  and  views  and  prospects,  or,  on  the 
other  hand,  to  protect  a  house  or  garden  from  being  looked  in  upon 
by  a  neighbor,  would  affect  essentially  the  value  of  vacant  lots,  or  of 
lots  with  low  and  back  buildings  upon  them.  To  the  same  effect  is 
Washburn  on  Easements  and  Servitudes,  497:  We  are  disposed  to 
concur  in  this  view,  and  to  hold  it  absurd  to  say  that  a  man,  by  the 
exercise  of  rights  over  his  own  property  for  20  years,  can  thereby 
acquire  a  title  in  the  property  of  another.  Such  a  doctrine  is  not 
applicable  to  our  growing  cities  and  villages,  and  was  not  the  doc- 
trine of  the  common  law,  as  expounded  in  Westminster  Hall  prior 
to  the  fourth  year  of  the  reign  of  James  I.  These  views  render  it 
unnecessary  to  consider  the  instructions  given  in  this  case,  as  it  is 
readily  seen  some  of  them  were  not  applicable.  As  we  understand 
the  declaration,  there  is  no  cause  of  action  stated  in  it  to  entitle  the 
plaintiff  to  a  recovery,  and  we  must  reverse  the  judgment.  The  judg- 
ment is  therefore  reversed,  and  the  cause  remanded. 
Judgment  reversed. 

(The  general  rule  is  stated  as  follows :  "At  common  law  a  man  has  a  right  to 
build  a  fence  or  other  structure  on  his  own  land  as  high  as  he  pleases,  although 
he  thereby  completely  obstructs  his  neighbor's  light  and  air,  and  the  motive 
by  which  he  is  actuated  is  immaterial."  Karasek  v.  Peier,  22  Wash.  419, 
61  Pac.  33,  50  L.  R.  A.  345 :  Camfield  v.  U.  S.,  167  U.  S.,  at  page  523,  17  Sup. 
Ct  866,  42  L.  Ed.  260 ;  Mahan  v.  Brown,  13  Wend.  261,  38  Am.  Dec.  461 ; 
Levy  v.  Brothers,  4  Misc.  Rep.  48,  23  N.  Y.  Supp.  825;  Letts  v.  Kessler,  54 
Ohio  St.  73,  42  N.  E.  765,  40  L.  R.  A.  177;  Triplett  v.  Jackson,  5  Kan.  App. 
777,  48  Pac.  931;  Saddler  v.  Alexander,  56  S.  W.  [Ky.]  518;  Metzger  v. 
Hochrein,  107  Wis.  267,  83  N.  W.  308,  50  L.  R.  A.  305,  81  Am.  St.  Rep.  841 
[fence  unsightly  and  made  of  old  lumber,  partly  rotten,  defendant  acting  from 
malicious  motives] ;  cf.  Phelps  v.  Nowlen,  72  N.  Y.  39,  28  Am.  Rep.  93.  But  in 
some  states  it  is  now  the  law — in  several  of  them,  by  statute — that  if  such  an 
act  be  done  maliciously,  it  affords  a  cause  of  action.  Lord  v.  Langdon,  91 
Me.  221,  39  Atl.  552 ;  Rideout  v.  Knox,  148  Mass.  368,  19  N.  E.  390,  2  L.  R.  A. 
81,  12  Am.  St.  Rep.  560 ;  Whitlock  v.  Uhle,  75  Conn.  423,  53  Atl.  891 ;  Horan 
v.  Byrnes,  70  N.  H.  531,  49  Atl.  569 ;  Flaherty  v.  Moran,  81  Mich.  52,  45  N.  W. 
381,  8  L.  R.  A.  183,  21  Am.  St  Rep.  510:  Karasek  v.  Peier,  supra;  cf.  Bros- 
troin  v.  Lauppe,  179  Mass.  315,  60  N.  E.  785;  Kuzniak  v.  Kozruinski,  107  Mich. 
445,  65  N.  W.  275,  61  Am.  St  Rep.  344. 

The  doctrine  of  "ancient  lights"  has  been  almost  universally  discarded  in 
this  country  as  not  suited  to  our  conditions.  Keats  v.  Hugo,  115  Mass.  204, 
15  Am.  Rep.  80,  and  cases  cited ;  Hayden  v.  Butcher,  31  N.  J.  Eq.  217 ;  Knabe 
v.  Levelle  [Super.  Ct  N.  Y.]  23  N.  Y.  Supp.  818;  Tinker  v.  Forbes,  136  111.  221, 
26  N.  E.  503 ;  Tunstall  v.  Christian,  80  Va.  1,  56  Am.  Rep.  581 ;  1  Wood  on 
Nuisances  [2d  Ed.]  196;  Cooley  on  Torts  [2d  Ed.J  833.  But  in  England  the 
Doctrine  is  still  maintained.  Colls  v.  Home  and  Colonial  Stores  [1904]  A.  C. 
179.) 


GENERAL  PRINCIPLES.  7 

(104  N.  Y.  471,  11  N.  E.  57.) 

MILLER  v.  WOODHEAD. 

(Court  of  Appeals  of  New  York.     March  1,  1887.) 

NEGLIGENCE— DANGEROUS  PREMISES— LANDLORD  AND  TENANT. 

Rooms,  the  windows  of  which  overlooked  an  extension  of  the  same 
house,  were  let  by  the  owner  of  the  whole  building  to  a  tenant,  with  the 
right  to  the  latter  to  use  the  roof  of  the  extension  for  drying  clothes. 
In  the  roof  near  the  windows  was  a  sky-light,  covered  with  a  wire  screen 
for  the  protecti<»  of  the  glass  in  it,  but  the  screen  was  in  bad  condition, 
and  was  afterwards  removed.  Before  it  was  replaced,  plaintiff,  a  child 
about  three  years  of  age,  while  visiting  the  tenant,  fell  out  of  the  window, 
through  the  sky-light,  and  was  injured.  Held,  that  the  owner  of  the  house 
was  not  liable  to  plaintiff  for  such  injuries ;  there  was  no  violation  of 
any  duty  which  he  owed  plaintiff ;  and,  even  if  the  screen  was  necessary 
to  render  the  roof  fit  for  the  use  of  the  tenant;  plaintiff  could  not  take 
advantage  of  any  violation  of  the  owner's  duty  to  the  tenant  in  that  re- 
spect, as  he  was  not,  at  the  time  of  the  accident,  connected  in  any  way 
with  the  tenant  in  the  use  of  the  roof. 

Appeal  from  Supreme  Court,  General  Term,  First  Department. 

Action  by  Samuel  L.  Miller,  an  infant,  against  Richard  Woodhead, 
to  recover  damages  for  personal  injuries  to  plaintiff  alleged  to  have 
been  caused  by  defendant's  negligence. 

PECKHAM,  J.  The  defendant  was  the  owner  of  a  house  in  Thirty- 
Third  street,  New  York,  some  rooms  in  which  he  had  rented  to  a 
Mrs.  O'Brien,  who  was  the  step-mother  of  the  plaintiff's  mother,  the 
plaintiff  being  an  infant  of  about  the  age  of  three  years.  Mrs.  O'Brien 
had  three  rooms  in  the  rear  of  the  house,  overlooking  an  extension 
thereof,  which  was  covered  with  a  tin  roof,  and  in  which  there  was  a 
sky-light  to  give  light  to  a  saloon  situated  in  such  extension.  Mrs. 
O'Brien  had  leased  the  right  to  use  this  roof  for  the  purpose  of  hang- 
ing out  and  drying  her  clothes,  and  when  she  rented  the  rooms  the 
defendant  had  cautioned  her  about  not  letting  children  out  on  the 
roof,  because  the  ceiling  was  very  bad,  and  she  had  never  allowed 
them  to  go  there.  This  tin  roof  was  about  a  foot  below  the  windows 
of  Mrs.  O'Brien's  rooms,  which  looked  out  on  it.  About  16  or  18 
inches  from  the  wall  in  which  the  windows  were  set  the  sky-light  in 
question  was  situated,  so  it  was  about  a  foot  below  the  windows,  and 
1 6  inches  away  from  the  wall.  The  sky-light  had  panes  of  glass  in  it, 
and  there  had  been  a  wire  screen  over  the  glass,  made  of  long  and 
small  wires,  very  thin,  and  in  bad  condition, — old  and  rotten.  This 
screen  had  been  taken  off  the  sky-light  some  six  weeks  prior  to  the 
accident,  and,  at  the  time  of  its  occurrence,  had  not  been  replaced. 
The  glass  in  the  sky-light  would  have  been  very  likely  broken  if  not 
covered,  as  the  boys  used  to  climb  up  a  ladder  and  play  ball  about 
there.  The  sill  of  the  windows  from  the  floor  inside  was  about  23 
inches,  and,  in  order  to  go  out  on  the  roof  from  the  rooms  occupied 


9  LAW  OF  TORTS. 

by  Mrs.  O'Brien,  it  was  necessary  to  raise  the  window  and  crawl 
through  the  lower  part  of  it  The  permission  given  by  the  defendant 
was  to  Mrs.  O'Brien  to  go  out  on  the  roof  and  dry  her  clothes  there. 
There  were  no  bars  on  the  window,  and  if  there  had  been  she  says 
she  would  not  have  taken  the  premises.  On  the  day  in  question  the 
mother  of  plaintiff,  with  a  babe  in  her  arms,  and  accompanied  by 
plaintiff,  called  at  Mrs.  O'Brien's,  and,  as  they  went  in  the  room, 
plaintiff's  mother  started  to  put  the  babe  on  a  bed  in  the  bed-room 
off  the  kitchen,  and  was  gone  but  a  few  seconds,  when  Mrs.  O'Brien 
saw  the  plaintiff,  who  had  gone  to  the  window,  tumbling  out.  She 
caught  sight  of  him  just  as  he  was  disappearing.  He  fell  through 
the  sky-light,  and  sustained  injuries  to  his  head,  etc.,  for  which  he 
brought  this  action.  Mrs.  O'Brien  gave  it  as  her  opinion  "that,  if 
the  wire  had  been  on,  it  had  been  all  right  for  the  boy."  From  her 
own  description,  it  is  perfectly  obvious  the  wire  screen  was  not  placed 
there  to  catch  people,  or  prevent  their  falling  through  the  sky-light, 
but  for  the  purpose  of  saving  the  glass  in  the  sky-light.  The  plain- 
tiff recovered  a  verdict,  which  has  been  affirmed  at  the  general  term, 
and  the  defendant  appeals  here. 

Upon  the  case  as  made  by  the  plaintiff,  we  are  unable  to  see  that 
any  proof  was  given  of  the  violation  of  any  duty  which  the  defendant 
owed  to  the  plaintiff.  The  roof  over  the  saloon,  or  the  sky-light  there- 
in, was  not  a  dangerous  structure,  and  defendant  had  given  no  in- 
vitation, and  issued  no  license,  expressed  or  implied,  to  plaintiff  to 
go  upon  the  roof.  Mrs.  O'Brien  had  the  right  to  go  on  it  for  the 
purpose  suggested,  and  very  likely  any  agent  or  servant  of  hers  en- 
gaged in  that  occupation  for  her.  This  is  no  such  case.  If  there 
had  been  no  roof  at  this  place,  the  plaintiff  would,  on  falling  out  of 
the  window,  have  come  to  the  ground.  Can  it  be  contended,  in  such 
case,  the  defendant  would  have  been  liable?  If  not,  how  is  his  lia- 
bility increased  by  the  fact  that  there  is  a  roof  just  below  these  win- 
dows, but  in  it  there  is  a  sky-light  which  a  child's  weight  could  break  ? 
If  the  defendant  owes  no  duty  in  the  one  case  to  build  a  roof  or  .a 
wall  or  any  other  structure  under  these  windows  to  catch  people  who 
fall  out  of  them,  how  is  his  liability  increased  when  he  does  build  a 
structure  with  a  roof,  but  which  does  not  absolutely  prevent  one  from 
falling  through  it  because  of  a. sky-light? 

But  the  liability  seems  to  have  been  placed,  in  the  court  below,  upon 
the  duty  which  it  is  said  the  defendant  owed  Mrs.  O'Brien  to  furnish 
her  a  reasonably  safe  roof  when  he  let  her  the  right  to  go  upon  it  to 
dry  clothes.  If  that  be  assumed,  we  do  not  see  how  plaintiff  is  aided. 
Mrs.  O'Brien  was  not  injured,  nor  any  of  her  servants,  by  reason  of 
the  unfitness  of  the  roof  for  the  purpose  for  which  it  was  to  be  used 
by  her  or  them.  The  plaintiff  was  not  injured  while  he  was  using 
the  roof  at  all.  He  simply  fell  out  of  a  window,  (as  the  evidence 
shows  beyond  all  question,)  and  thus  received  his  injury.  What  had 
the  liability  (whatever  it  was)  of  defendant  to  Mrs.  O'Brien  to  do  with 
this  question  between  plaintiff  and  himself,  as  the  plaintiff  was  not 


GENERAL  PRINCIPLES.  9 

using  the  roof  for  any  purpose  whatever?  Conceding  that  to  fulfill 
his  obligations  to  Mrs.  O'Brien,  and  to  render  the  roof  fit  for  her  to 
use  for  the  purpose  spoken  of,  this  wire  screen  was  a  necessity,  and 
that  if  it  had  been  there  on  this  occasion  the  plaintiff  would  not  have 
been  hurt,  still  there  was  no  duty  owing  by  him  to  this  plaintiff  to 
have  the  roof  in  that  condition,  so  that  he  could  be  caught  when  he 
fell  out  of  the  window,  and  the  injury  thus  be  averted.  The  duty  of 
defendant  to  Mrs.  O'Brien,  in  order  to  fulfill  his  contract  with  her 
in  granting  her  permission  to  use  the  roof,  is  one  thing;  but  the 
plaintiff  cannot  take  advantage  even  of  its  violation,  unless  at  the  time 
when  the  accident  happened  he  was  himself  in  some  way  connected 
with  her,  as  in  the  performance  of  the  duty  for  her,  or  in  using  the 
roof  with  her  license,  (even  if  that  would  raise  a  duty,)  and  in  carry- 
ing out  some  right  which  she  had  herself.  This  case  has  none  of 
these  features.  The  duty  of  defendant  may  be  one  thing  to  Mrs. 
O'Brien  and  quite  another  to  the  plaintiff.  Larmore  v.  Iron  Co.,  101 
N.  Y.  391,  4  N.  E.  752,  54  Am.  Rep.  718.  We  think  this  case  not 
distinguishable  in  principle  from  McAlpin  v.  Powell,  70  N.  Y.  126, 
26  Am.  Rep.  555.  The  judgment  of  the  general  term  and  of  the 
circuit  should  be  reversed,  and  a  new  trial  ordered,  costs  to  abide 
event.'  All  concur. 

(A  case  of  quite  similar  character  Is  Galligan  v.  Metacomet  Mfg.  Co.,  143 
Mass.  527,  10  N.  E.  171.  Other  interesting  cases  holding  that  there  is  no  tort 
where  no  legal  duty  exists  are  the  following:  Plaintiff's  horse  ate  the  leaves 
of  a  yew  tree  growing  on  defendant's  adjacent  land,  the  branches  of  Which 
did  not  extend  over  the  boundary  line,  and  died  therefrom.  Held,  that  plaintiff 
had  no  cause  of  action.  Ponting  v.  Noakes,  [1894]  2  Q.  B.  281.  Plaintiff's 
country  house  had  been  called  "Ashford  Lodge"  for  60  years,  and  defendant's 
adjoining  house  had  been  called  "Ashford  Villa"  for  40  years.  Then  defendant 
adopted  the  name  "Ashford  Lodge."  Plaintiff  alleged  that  this  caused  him 
great  inconvenience  and  annoyance  and'had  diminished  the  value  of  his  prop- 
erty, but  it  was  held  on  demurrer  that  no  legal  right  had  been  violated.  Day 
v.  Brownrigg,  L.  R.  10  Ch.  Div.  294.) 


(86  Pa.  74.) 

GRAMLICH  v.  WURST  et  al. 
(Supreme  Court  of  Pennsylvania.    January  28,  1878.) 

NEGLIGENCE— DANGEROUS  PREMISES— INJURY  TO  TRESPASSER. 

A  lawful  occupant  of  land,  who  makes  an  excavation  thereon  for  a  law- 
ful purpose  and  in  the  accustomed  manner,  at  a  distance  from  any  public 
highway,  is  not  liable  for  injuries  received  by  a  trespasser  from  falling 
Into  the  excavation. 

Error  to  Court  of  Common  Pleas,  Philadelphia  County. 
Action  on  the  case  by  Mary  Wurst  and  others,  the  widow  and  in- 
fant children  of  John  A.  Wurst,  deceased,  against  Frederick  Gram- 


10  LAW  OF  TORTS. 

lich,  for  damages  for  the  death  of  said  John  A.  Wurst,  alleged  to 
have  been  caused  by  defendant's  negligence. 

At  the  trial  defendant  submitted  several  points,  among  them  the 
following:  "(3)  The  place  of  this  excavation  being  on  private  prop- 
erty, and  not  on  any  line  of  street  or  public  highway,  but  some  dis- 
tance therefrom,  the  said  decedent,  not  being  engaged  in  any  manner 
whatever  by  the  said  defendant  or  his  agents,  had  no  right  to  be  there, 
and  was  a  trespasser,  and  the  verdict  should  have  been  for  the  de- 
fendant." The  judge  presiding  at  the  trial  refused  this  point,  and 
instructed,  in  part,  the  jury  as  follows:  "Now,  as  to  the  defense,  it 
is  contended  by  defendant:  First.  That  there  is  no  direct  evidence 
how  the  accident  happened,  and  therefore  no  sufficient  evidence  of 
defendant's  negligence.  In  support  of  this  view,  defendant's  counsel 
has  called  your  attention  to  the  fact  that  Wurst,  when  he  fell  in,  was 
not  on  his  route  home  from  the  place  where  he  was  last  seen  at  work. 
His  home  was  in  another  direction.  Further,  he  was  a  trespasser  on 
the  lot  where  the  excavation  was,  and  had  no  legal  right  to  be  there 
at  all.  I  instruct  you  that  those  facts  do  not  absolutely  prevent  a 
recovery  by  the  plaintiffs.  A  man  is  bound  to  exercise  reasonable 
care  even  towards  a  trespasser.  But  these  facts  bear  very  strongly 
on  the  question  of  what  was  reasonable  care  on  the  part  of  defendant 
under  the  circumstances, — in  other  words,  of  his  negligence ;  and  also 
of  the  negligence  of  the  deceased.  A  trespasser  is  bound  to  proceed 
with  more  care  than  where  he  has  a  right,  and,  on  the  other  hand, 
the  defendant  was  not,  in  ordinary  circumstances,  bound  to  anticipate 
a  trespass.  Secondly.  Has  the  plaintiff  proved  to  your  satisfaction 
that,  under  all  the  circumstances  of  the  case,  the  defendant  was  guilty 
of  negligence?"  And  after  reviewing  the  evidence  the  judge  con- 
tinued: "Now,  you  are  to  judge  from  all  this  evidence  whether  the 
defendant  was  negligent  in  leaving  his  excavation  without  lights  and 
without  a  fence,  under  the  special  circumstances  of  that  night.  There 
had  been  a  serious  accident,  resulting  in  loss  of  life,  and  there  was. 
according  to  all  the  testimony,  a  crowd  of  people  about  the  place  all 
the  afternoon.  This  in  itself  would  impose  on  the  defendant  more 
care  in  regard  to  his  excavation  than  under  ordinary  circumstances. 
It  increased  the  danger  of  injury  to  trespassers,  as  to  whom,  as  I 
have  already  said,  the  defendant  owed  the  duty  of  a  reasonable  care ; 
not  such  degree  of  care  as  required  as  to  people  who  should  be  hab- 
itually and  lawfully  there,  but  such  as,  under  all  circumstances,  was 
reasonable  to  require,  even  as  to  others.  In  judging  of  this  care, 
however,  the  defendant  is  entitled  to  have  you  consider  the  facts  that 
this  was  an  extraordinary  occurrence,  such  as  he  was  not  bound  to 
and  in  fact  could  not  anticipate ;  that  the  street  was  not  opened  through 
for  public  travel;  that  the  ground  between  the  fallen  ice-house  and 
the  edge  of  this  excavation  was  not  only  steep  and  up-hill,  but  was 
also  incumbered  with  piles  of  lumber  and  the  debris  of  the  fallen  ice- 
house, so  as  to  make  it  unlikely  that  any  one  would  clamber  over 
them  from  that  direction;  and,  in  general,  the  want  of  probability 


GENERAL  PRINCIPLES.  11 

that  any  person  would  be  injured  by  falling  into  his  excavation.  Last- 
ly. You  will  consider  the  question  whether  the  deceased  was  neg- 
ligent in  going  towards  the  cellar  on  a  dark  and  rainy  night,"  etc. 
The  judge  then  stated  the  law  as  to  contributory  negligence,  and, 
calling  the  attention  of  the  jury  to  the  care  incumbent  on  deceased 
under  the  circumstances,  instructed  them  that  contributory  negligence 
on  his  part  would  bar  a  recovery.  The  jury  found  a  verdict  for  plain- 
tiffs for  $4,000.  Plaintiffs  subsequently  filed  a  remittitur  of  $1,000  of 
that  amount.  Defendant  sued  out  a  writ  of  error,  and  assigned  as 
error  the  refusal  of  the  judge  to  affirm  the  point  mentioned. 

Argued  before  AGNEW,  C.  J.,  and  SHARSWOOD,  MERCUR, 
GORDON,  PAXSON,  WOODWARD,  and  TRUNKEY,  JJ. 

WOODWARD,  J.  John  Adam  Wurst  was  killed  by  falling  into 
a  vault  which  Frederick  Gramlich,  the  defendant  below,  was  employed 
in  excavating  on  a  lot  belonging  to  Adam  Miller,  on  the  east  side  of 
Thirty-First  street,  above  Jefferson.  The  work  was  done  under  a 
contract  between  Gramlich  and  Miller,  and  for  the  purposes  of  the 
contract  Gramlich  had  exclusive  possession  of  the  lot.  Another  per- 
son had  fallen  into  the  vault,  and,  in  approaching  to  aid  him  in  re- 
sponse to  his  cries  for  help,  it  is  probable  that  Wurst  met  with  the 
accident  that  caused  his  death.  In  falling,  his  head  struck  the  shaft 
of  a  cart  that  was  in  use  in  doing  the  work,  and  which  had  been  left 
overnight  in  the  excavation.  It  was  after  dark,  on  the  evening  of  the 
1 3th  of  February,  1874,  that  the  accident  happened.  On  the  morning 
of  that  day  the  roof  of  an  ice-house  on  a  lot  of  Henry  Miller,  inter- 
vening between  Adam  Miller's  land  and  Jefferson  street,  had  broken 
down,  and  Wurst,  who  was  a  carpenter,  had  been  at  work  on  that 
building  during  the  whole  of  the  afternoon.  Michael  Gossey,  one  of 
the  witnesses  for  the  plaintiffs,  said  he  saw  him  about  half  past  3 
o'clock  on  the  top  of  the  brewery  getting  wood  down,  and  Henry 
Miller  said :  "Wurst  was  there  before  I  was,  clearing  off  the  roof. 
It  was  a  little  after  12  o'clock  when  I  arrived  there.  As  long  as  I 
stood  there  he  was  working  there.  He  was  there  until  after  seven 
o'clock.  He  was  hauling  away  timber.  It  was  hauled  to  the  north 
side,  between  my  brewery  and  the  vault  Mr.  Gramlich  was  digging." 
There  was  an  open  space  between  Henry  Miller's  building  and  Adam 
Miller's  line,  and  from  the  account  which  the  plaintiffs  gave  of  Wurst's 
employment  during  the  day  the  fact  that  the  excavation  was  being 
made  must  have  been  known  to  him,  and  the  situation  of  the  vault 
when  the  work  ceased  that  evening  must  have  been  within  his  view. 
When  he  fell  he  was  passing  from  the  land  of  Henry  Miller  near  the 
rear  of  Adam  Miller's  lot,  and  perhaps  80  feet  eastwardly  from  the 
Thirty-First  street  front. 

Under  these  facts, — and  all  of  them  that  are  material  are  gathered 
from  the  testimony  on  behalf  of  the  plaintiffs, — what  duty  did  Gram- 
lich owe  to  Wurst?  The  contract  for  digging  the  vault  was  a  per- 
fectly lawful  one,  and  it  has  not  been  alleged  that  the  work  was  done 


12  LAW  OF  TORTS. 

otherwise  than  in  the  accustomed  way.  It  was  all  done  within  Adam 
Miller's  lines.  No  adjacent  land  was  encroached  upon,  and  no  danger 
to  passengers  on  any  highway  was  created.  Indeed,  there  was  no 
highway  to  be  involved  in  danger.  Thirty-First  street,  north  oi  Jef- 
'  ferson,  had  only  been  opened  along  the  property  of  Henry  Miller, 
and  the  surface  of  Adam  Miller's  lot  at  the  line  of  the  street  was 
from  10  to  15  feet  above  its  established  grade.  There  was  some  con- 
flicting testimony  as  to  paths  alleged  to  have  traversed  the  lot,  but, 
if  there  were  such  paths,  they  extended  eastwardly  or  north-eastwardly 
in  the  direction  of  a  lampblack  factory,  and  it  was  not  contested  that 
Wurst  fell  into  the  vault  as  he  approached  it  from  the  southern  side. 
The  existence  or  non-existence  of  paths  across  the  property  was  im- 
material. In  the  ordinary  case,  a  jury  must  pass  upon  evidence  given 
in  support  of  a  charge  of  negligence.  They  must  do  this  always  when 
the  measure  of  duty  is  ordinary  and  reasonable  care,  and  the  standard 
of  the  degree  of  care  shifts  with  the  change  of  circumstances.  And 
they  must  do  it  also  where  essential  facts  are  controverted.  But  where 
there  is  no  conflict  of  testimony,  and  either  the  standard  of  individual 
duty  has  been  judicially  determined,  or  the  rights  of  owners  of  prop- 
erty have  been  judicially  defined,  the  decision  of  a  question  of  neg- 
ligence affecting  individual  action  in  the  one  case,  or  the  exercise  of 
dominion  over  property  in  the  other,  becomes  the  duty  of  a  court. 
Negligence  is  to  be  found  upon  evidence,  and  is  not  to  be  presumed 
from  the  bare  fact  of  the  occurrence  of  an  accident  on  a  defendant's 
land.  Gramlich  was  in  the  lawful  occupancy  of  the  lot  on  which 
Wurst  was  killed,  and  was  engaged  in  an  employment  that  was  en- 
tirely legitimate.  In  the  absence  of  evidence  to  show  the  existence 
of  exceptional  hazards,  he  was  not  required  to  provide  exceptional 
safeguards.  An  owner  of  land  may  improve  it  in  his  own  time  and 
in  his  own  way,  so  that  he  violates  no  duty  that  he  owes  to  any  ad- 
jacent owner  or  to  the  public.  A  case  as  old  as  Blyth  v.  Topham, 
Cro.  Jac.  158,  held  that  "an  action  doth  not  lie  if  a  man  makes  a  ditch 
in  his  own  waste,  which  lies  near  the  highway,  into  which  the  horse 
of  another  falls;  for  the  ditch  in  his  own  soil  was  no  wrong  to  the 
other,  but  it  was  his  fault  that  his  horse  escaped  into  the  waste." 
Where  A,  who  was  the  owner  of  a  store-house  and  lot,  left  at  the 
rear  of  the  store-house  an  excavation  walled  up  to  give  light  to  the 
cellar,  and  B,  who,  on  an  alarm  of  fire,  went  down  to  the  store-house, 
adjoining  the  house  in  which  the  fire  was,  and,  entering  at  the  front 
door,  went  through  the  store,  and,  going  through  the  back  door, 
turned  off  the  gangway  across  the  opening,  and  fell  in  and  was  in- 
jured, it  was  held  that  the  digging  of  an  open  space  in  the  rear  of 
the  store-house  by  A,  upon  his  own  ground,  was  a  lawful  act  by  him, 
and  he  had  the  right  to  keep  it  there  as  an  appurtenant  right  for  the 
use  of  his  property ;  and  B  falling  in  by  accident,  the  same  not  being 
near  a  public  street  or  crossing,  gave  no  right  to  recover  damages 
from  A  as  a  wrong-doer,  and  B's  going  there  on  account  of  the  fire 
did  not  change  the  rule.  Kohn  v.  Lovett,  44  Ga.  251.  The  law  fully 


GENERAL  PRINCIPLES.  13 

recognizes  the  right  of  him  who,  having  the  dominion  of  the  soil, 
without  malice  does  a  lawful  act  on  his  own  premises,  and  leaves  the 
consequences  of  an  act  thereby  happening  where  they  belong, — upon 
him  who  has  wandered  out  of  his  way,  though  he  may  have  been 
guilty  of  no  negligence,  in  the  ordinary  acceptation  of  the  term.  It 
is  purely  damnum  absque  injuria.  Morgan  v.  City  of  Hallowell,  57 
Me.  377.  "When  an  excavation  is  made  adjoining  to  a  public  way, 
so  that  a  person  walking  on  it  might,  by  making  a  false  step,  or  being 
affected  with  sudden  giddiness,  fall  into  it,  it  is  reasonable  that  the 
person  making  such  excavation  should  be  liable  for  the  consequences. 
But  when  the  excavation  is  made  at  some  distance  from  the  way,  and 
the  person  falling  into  it  would  be  a  trespasser  upon  the  defendant's 
land  before  he  reached  it,  the  case  seems  to  me  to  be  different."  Mar- 
tin, B.,  in  Hardcastle  v.  Railway  Co.,  4  Hurl.  &  N.  67.  So  where 
the  defendants  were  owners  of  waste  land  which  was  bounded  by 
two  highways,  and  they  worked  a  quarry  in  the  waste,  and  the  plain- 
tiff, not  knowing  of  the  quarry,  passed  over  the  waste  in  the  dark  and 
fell  into  the  quarry  and  broke  his  leg,  and  then  brought  an  action  for 
the  injury,  it  was  held  that  the  action  could  not  be  maintained,  as 
there  was  no  legal  obligation  on  the  defendants  to  fence  the  quarry 
for  the  benefit  of  the  plaintiff,  who  was  a  mere  trespasser  on  the  land. 
Hounsell  v.  Smyth,  7  C.  B.  (N.  S.)  731.  This  rule  was  laid  down 
by  Chief  Justice  Gibson  in  Knight  v.  Abert,  6  Pa.  472,  47  Am.  Dec. 
478,  which  decided  that,  though  no  action  lies  in  Pennsylvania  for 
trespass  by  cattle  pasturing  on  uninclosed  woodland,  yet  that,  not  be- 
ing a  matter  of  right,  the  owner  of  the  land  is  not  liable  for  injuries 
sustained  by  such  cattle  falling  into  a  hole  dug  by  him  within  the 
boundaries  of  his  land,  and  left  uninclosed.  And  the  opinions  of  Mr 
Justice  Strong  in  Railroad  Co.  v.  Hummell,  44  Pa.  378,  84  Am.  Dec. 
457,  and  of  Mr.  Justice  Sharswood  in  Gillis  v.  Railroad  Co.,  59  Pa. 
129,  98  Am.  Dec.  317,  illustrated  and  enforced  substantially  the  same 
rule. 

Reliance  has  been  placed  on  the  case  of  Hydraulic  Works  Co.  v. 
Orr,  83  Pa.  332,  to  support  this  judgment.  The  distinction  between 
that  case  and  this  is  marked  and  obvious.  There  the  accident  hap- 
pened in  a  private  passage  or  cartway  adjoining  a  factory,  where 
several  kinds  of  business  were  carried  on  in  different  stores,  and  was 
caused  by  the  falling  of  a  heavy  platform  employed  as  an  inclined 
plane  to  move  heavy  articles  into  and  out  of  the  building.  When 
used,  it  was  lowered  so  as  to  cover  the  pavement  of  the  cartway. 
When  not  in  use,  it  was  raised  on  hinges  that  connected  one  side  of 
it  within  18  inches  of  the  wall,  was  not  fastened  at  the  upper  side, 
and  was  so  nearly  at  equipoise  that  slight  force  only  was  required  to 
draw  it  down.  The  cartway  opened  from  a  public  street,  where  peo- 
ple were  constantly  passing  and  children  were  often  at  play.  There 
was  a  gate  at  the  street  end,  and  this  was  frequently  left  open.  It 
was  so  left  at  the  time  of  the  accident,  when  four  children  intruded 
into  the  cartway,  and  their  thoughtless  tampering  with  the  platform 


14  LAW  OF  TORTS. 

resulted  in  drawing  it  down  upon  themselves,  and  in  producing  in- 
jury to  the  child  of  the  plaintiffs  from  which  he  died.  This  court 
affirmed  a  verdict  and  judgment  for  damages  in  the  common  pleas. 
No  cause  was  ever  more  justly  decided.  It  was  the  case  suggested 
by  Baron  Martin  in  Hardcastle  v.  Railway  Co.,  of  a  dangerous  ap- 
pliance adjoining  a  public  way.  The  children  were  trespassers  cer- 
tainly, but  then  they  were  children,  and  the  defendants  were  bound 
to  have  regard  to  the  reckless  and  thoughtless  tastes  and  traits  of 
childhood.  The  entrance  to  the  cartway  was  open  and  unguarded, 
and  the  facts  in  the  record  showed  the  strong  probability  of  danger 
from  the  structure.  It  had  once  fallen  against  the  wheels  of  a  wagon, 
and  when  other  wagons  passed  it  was  held  up  by  hand.  Even  a  tres- 
passer may  have  redress  for  negligent  injuries  inflicted  on  him. 
Though  he  is  liable  to  an  action  for  his  own  wrong,  he  does  not  neces- 
sarily forfeit  his  right  of  action  for  injuries  he  has  sustained,  as,  for 
example,  by  falling  into  a  hole  newly  excavated  on  a  defendant's  prem- 
ises adjoining  a  public  way,  and  rendering  it  unsafe  to  persons  law- 
fully using  the  same  with  ordinary  care.  Barnes  v.  Ward,  9  C.  B. 
392,  420.  The  owner  of  open  land  has  no  right  to  plant  in  it  spring- 
guns  by  which  ordinary  trespassers  may  be  wounded.  State  v.  Moore, 
31  Conn.  479,  83  Am.  Dec.  159.  In  this  country,  while  a  house  may 
be  thus  protected  from  burglars,  no  man  has  a  right  to  place  on  his 
land  any  instruments  to  injure  persons  merely  straying  on  such  land. 
Johnson  v.  Patterson,  14  Conn,  i,  35  Am.  Dec.  96.  A  party  may  be 
acting  in  violation  of  some  particular  statute,  and  still  be  under  the 
general  protection  of  the  law.  Spofford  v.  Harlow,  3  Allen,  176. 
Hydraulic  Works  Co.  v.  Orr  rested  on  principles  and  precedents  that 
sustained  it  amply,  but  which  have  no  application  here.  The  undis- 
puted facts  proved  the  defendant  to  have  been  guiltless  of  all  wrong, 
and  the  prayer  for  instruction  to  the  jury  that  he  was  entitled  to  a 
verdict  should  have  been  granted. 
Judgment  reversed. 

(See  also  for  similar  eases,  Railroad  Co.  v.  Sclnvindling.  101  Pa.  258,  47 
Am.  Rep.  706 ;  Gillespie  v.  McGowan,  100  Pa.  144,  45  Am.  Rep.  365 ;  Horstick 
v.  Dunkle,  145  Pa.  220,  23  Atl.  378,  27  Am.  St.  Rep.  685;  Peters  v.  Bowman. 
115  CaL  345,  47  Pac.  113,  598,  56  Am.  St  Rep.  106.) 


GENERAL  PRINCIPLES.  15 


The  violation  of  a  moral  right  or  duty,  unless  it  also 
amounts  to  a  legal  right  or  duty,  does  not  constitute 
a  tort. 

(11  Pick.  527.) 

LAMB  v.  STONE. 

(Supreme  Judicial  Court  of  Massachusetts.      October  Term,  1831.) 

FEATJD — PUBCHASE  OF  PBOPEBTY  FBOM  ABSCONDING  DEBTOB. 

A  creditor  cannot  maintain  an  action  for  fraud  against  one  who  has 
fraudulently  purchased  from  the  debtor  property  of  the  latter  subject  to 
attachment,  and  aided  him  to  abscond,  thereby  preventing  the  creditor 
from  arresting  the  debtor  or  attaching  his  property,  or  otherwise  obtain- 
ing satisfaction  of  the  debt ;  the  creditor  having  had  no  lien  or  claim 
upon  or  interest  in  the  property  so  purchased.  Though  the  defendant's 
fraudulent  act  is  a  moral  wrong,  no  legal  right  of  the  creditor  is  violated 
thereby. 

Motion  in  Arrest  of  Judgment. 

Action  on  the  case  by  Joseph  Lamb  against  Richard  Stone.  The 
declaration  contained  five  counts,  of  which  the  fourth  alleged  that  one 
Thompson,  at  a  place  and  on  a  date  stated,  was  justly  indebted  to 
the  plaintiff  in  the  sum  of  $56.13,  and  was  possessed  of  certain  prop- 
erty, to-wit,  etc.,  of  great  value,  to-wit,  $250;  and  the  defendant,  well 
knowing  the  premises,  and  fraudulently  contriving  to  deprive  the  plain- 
tiff of  the  means  of  obtaining  payment  of  his  debt,  and  in  order  to 
aid  and  abet  Thompson  in  his  designs  to  evade  payment  of  it,  and 
thereby  prevent  the  plaintiff  from  collecting  and  recovering  it  of 
Thompson,  which  he  was  about  to  do  by  due  process  of  law,  did 
fraudulently  and  wrongfully,  and  with  an  intent  the  plaintiff  thereby 
to  defraud  and  injure,  take  and  receive  the  property  from  Thompson, 
and  convert  it  to  his  (the  defendant's)  own  use,  and  thereby  prevented 
the  plaintiff  from  collecting  his  debt  by  attaching  and  selling  the 
property  by  due  prqcess  of  law,  as  he  might  and  would  otherwise 
have  done;  whereby  the  plaintiff  has  been  ever  since  prevented  from 
recovering  his  debt  of  Thompson,'  and  wholly  deprived  of  the  benefit 
of  the  same,  and  the  same  is  still  due  and  unpaid.  The  fifth  count 
alleges  that  whereas  Thompson,  at  the  same  place  and  on  the  same 
date,  was  indebted  to  the  plaintiff  in  the  sum  of  $56,  and  was  fraudu- 
lently and  wrongfully  contriving  and  intending  to  prevent  the  plaintiff 
from  recovering  the  same  of  Thompson  by  putting  out  of  his  pos- 
session the  property  and  estate  of  which  he  was  possessed,  so  that 
the  same  could  not  be  come  at  to  be  attached  by  due  process  of  law, 
and  avoiding  the  process  of  law  provided  for  the  collection  of  debts, 
by  going  out  of  the  commonwealth  and  the  reach  of  said  process, — of 
all  which  the  defendant  was  then  and  there  well  knowing, — he,  the 
defendant,  did,  in  order  to  aid  and  abet  Thompson  in  his  wrongful 
and  fraudulent  intent,  and  with  the  intent  to  injure  arid  defraud  the 
plaintiff  of  his  demand  against  Thompson,  take  into  his  possession, 


16  ,     LAW  OF  TORTS. 

purchase  and  receive  the  property  and  estate  of  Thompson,  then  and 
there  being  found,  of  great  value,  to-wit,  $250,  and  did  fraudulently, 
and  with  the  intent  to  deprive  the  plaintiff  of  the  means  of  recovering 
his  debt  of  Thompson,  aid,  abet,  and  assist  Thompson  to  avoid  the 
process  of  law  provided  for  the  collection  of  debts,  by  departing  out 
of  the  commonwealth,  which  Thompson  did,  and  has  ever  since  re- 
mained without  the  reach  and  effect  of  the  legal  process  of  the  com- 
monwealth, in  foreign  parts,  to-wit,  in  the  state  of  Vermont,  whereby 
the  plaintiff  was  deprived  of  the  means  of  collecting  his  debt,  as  he 
might  and  would  otherwise  have  done,  and  was  about  to  do,  by  at- 
taching the  property  or  arresting  the  body  of  Thompson  by  due  pro- 
cess of  law;  and  has  ever  since  been  deprived  of  his  debt,  and  all 
means  of  collecting  the  same  or  enforcing  payment  thereof,  and  has 
wholly  lost  the  same,  and  has  been  otherwise  greatly  injured  by  the 
fraudulent  doings  of  the  defendant  as  aforesaid.  The  defense  was 
the  general  issue.  At  the  trial  the  jury  found  a  general  verdict  for 
plaintiff.  Defendant  moved  in  arrest  of  judgment,  on  the  ground 
that  the  declaration  set  forth  no  sufficient  cause  of  action. 

MORTON,  J.  This  case  comes  before  us  on  a  motion  in  arrest 
of  judgment.  The  verdict  of  the  jury  establishes  every  material  al- 
legation in  the  plaintiff's  declaration;  and  every  fact  substantially  set 
forth  is  to  be  taken  to  be  true.  The  question  for  our  decision  is 
whether  these  facts  are  sufficient  to  entitle  the  plaintiff  to  judgment. 
Although  the  verdict  is  general,  yet  in  this  case,  if  either  count  is 
good,  the  verdict  may  be  applied  to  that  count,  and  judgment  be  ren- 
dered upon  it.  The  following  are  all  the  material  allegations  con- 
tained in  either  of  the  counts:  That  the  plaintiff  had  a  just  debt  due 
him  from  one  Thompson ;  that  the  latter  had  property  liable  to  attach- 
ment sufficient  to  pay  this  debt;  that  the  defendant  took  a  fraudulent 
conveyance  of  this  property;  that  Thompson  has  absconded  from  the 
state ;  that  the  plaintiff  has  not  been  able  to  arrest  him,  to  attach  his 
property,  or  otherwise  to  obtain  satisfaction  of  his  debt ;  and  that 
the  acts  done  by  the  defendant  were  done  with  intent  to  defraud  the 
plaintiff,  by  preventing  him  from  securing  or  getting  satisfaction  of 
his  debt.  Some  of  these  are  omitted  in  several  of  the  counts,  but  no 
one  contains  any  other  material  allegation.  Will  these  facts  support 
an  action? 

Before  proceeding  to  the  investigation  of  the  main  question,  it  may 
be  proper  to  remark  that  the  declaration  contains  no  averment  that 
Thompson  is  insolvent,  or  that  he  has  not,  where  he  now  resides, 
property  liable  to  be  taken  sufficient  to  satisfy  the  debt,  or  that  any 
suit  has  ever  been  commenced  against  him,  or  any  attempt  made  to 
arrest  his  body  or  attach  his  property;  nor  is  it  alleged,  except  by 
implication,  that  he  has  not  in  this  state  real  estate  or  personal  prop- 
erty, other  than  that  transferred  to  the  defendant,  liable  to  attach- 
ment. It  ought  also  to  be  further  remarked  that  this  is  not  an  action 
of  conspiracy  or  of  case  in  the  nature  of  conspiracv.  It  is  not  founded 


GENERAL  PRINCIPLES.  17 

upon  any  illegal  combination  or  confederacy.  The  declaration  does 
not  set  forth  any  conspiracy  to  defraud  the  plaintiff  or  to  evade  or 
defeat  any  legal  process.  No  such  fact  can  be  presumed  to  exist,  and 
therefore  we  have  no  occasion  to  determine  what  effect  such  an  aver- 
ment would  have.  It  will,  however,  be  perceived  that  some  of  our 
reasoning  would  apply  to  such  an  action  as  well  as  the  one  before  us. 

This  is  a  special  action  on  the  case,  depending  upon  the  precise 
facts  set  forth  in  the  declaration.  It  is  an  action  of  new  impression. 
It  is  admitted  that  no  precedent  can  be  found  for  it.  This  circum- 
stance of  itself  forms  a  pretty  strong  objection.  It  ought,  however, 
to  have  less  weight  in  this  than  any  other  form  of  action.  In  the 
diversified  transactions  of  civilized  life,  new  combinations  of  circum- 
stances will  sometimes  arise  which  will  require,  in  the  application  of 
well-settled  principles  of  law,  new  forms  of  declarations.  Among 
the  old  and  wise  axioms  of  the  law,  none  are  more  sound  than  those 
upon  which  the  plaintiff  attempts  to  found  this  action.  In  law,  for 
every  wrong  there  is  a  remedy.  3  Bl.  Comm.  123 ;  Ashby  v.  White, 
1  Salk.  21.  Whenever  the  law  creates  or  recognizes  a  private  right, 
it  also  gives  a  remedy  for  a  violation  of  it.  i  Chit.  PI.  83 ;  Yates  v. 
Joyce,  ii  Johns.  140.  The  general  principle,  that  whenever  there  is 
fraud  or  deceit  by  the  one  party  and  injury  to  the  other,  or  damnum 
cum  injuria,  there  an  action  will  lie,  is  very  often  referred  to  with 
approbation,  and  always  recognized  as  good  law.  Upton  v.  Vail,  6 
Johns.  182,  5  Am.  Dec.  210;  Pasley  v.  Freeman,  3  Term  R.  51; 
Eyre  v.  Dunsford,  I  East,  329.  But  these  principles,  however  sound, 
must  be  understood  with  such  qualifications  and  limitations  as  other 
principles  of  law  equally  sound  necessarily  impose  upon  them.  It  is 
very  clear  that  there  may  be  many  moral  wrongs  for  which  there  can 
be  no  legal  remedy.  And  there  may  be  legal  torts  in  which  the  dam- 
age to  individuals  may  be  very  great,  and  yet  so  remote,  contingent, 
or  indefinite  as  to  furnish  no  good  ground  of  action.  3  Term  R.  63. 
Without  entering  further  into  the  explanation  of  these  principles,  their 
extent,  qualifications,  or  limitations,  we  will  proceed  to  inquire  how 
far  they  may  be  relied  upon  in  support  of  this  action.  To  render 
them  applicable,  the  plaintiff  must  show  that  he  has  sustained  damage 
from  the  tortious  act  of  the  defendant,  for  which  the  established  forms 
of  law  furnish  him  no  remedy.  If  he  may  have  redress  by  any  of 
the  forms  of  actions  now  known  and  practiced,  it  would  be  unwise" 
and  unsafe  to  sanction  an  untried  one,  the  practical  operation  of  which 
cannot  be  fully  foreseen.  The  court  will  adopt  a  new  remedy  to  pre- 
vent the  failure  of  justice,  or  to  enforce  the  settled  principles  of  law, 
but  never  when  justice  can  be  attained  by  any  of  the  remedies  already 
known  to  the  law.  Com.  Dig.  "Action  on  the  Case,"  B.  8. 

The  gist  of  the  injury  complained  of  is  the  fraudulent  purchase  by 
the  defendant  of  the  property  of  the  plaintiff's  debtor.  If  the  sale 
was  fraudulent,  it  might  be  avoided  by  the  creditors,  and  the  property 
was  liable  to  attachment  after  as  well  as  before  the  conveyance.  The 
fraud  could  be  established  quite  as  easily  in  a  suit  for  the  chattels 
CHASE  (2d  ED.) — 2 


lg  LAW  OF  TORTS. 

themselves  as  in  the  present  case.  There  is  no  averment  that  the 
defendant  had  concealed  the  property,  removed  it  out  of  the  common- 
wealth, or  in  any  other  way  so  disposed  of  it  that  it  could  not  be 
attached.  But  even  if  it  were  so,  and  the  property  could  not  be  come 
at  to  be  attached  specifically,  yet  it  might  be  attached  in  the  defend- 
ant's hands  by  the  trustee  process.  In  this  event  the  defendant  would 
be  compellable  to  disclose  all  the  circumstances  attending  the  trans- 
action on  oath,  and,  if  he  did  not  answer  truly,  would  be  liable  to  a 
special  action  on  the  case,  by  St.  1794,  c.  65,  §  9.  It  would  be  diffi- 
cult to  show  any  good  reason  why  the  plaintiff  might  not  obtain  legal 
justice  in  the  one  or  the  other  of  these  modes,  as  easily  and  surely 
as  by  the  present  action.  Burlingame  v.  Bell,  16  Mass.  320 ;  Devoll 
v.  Brownell,  5  Pick.  448. 

It  was  said  in  argument  by  the  plaintiff's  counsel  that,  if  he  re- 
sorted to  the  trustee  process,  the  defendant  would  be  entitled  to  any 
equitable  set-off  which  he  might  have  against  his  principal ;  that,  if 
he  had  made  advances  or  paid  debts  in  good  faith,  he  would  be  al- 
lowed to  apply  them  towards  satisfaction  for  the  property  conveyed 
to  him;  and  so  the  plaintiff  could  not  avail  himself  of  the  full  value 
of  the  property.  Andrews  v.  Ludlow,  5  Pick.  32;  Ripley  v.  Sever- 
ance, 6  Pick.  474,  17  Am.  Dec.  397 ;  Type  &  Stereotype  Foundry  Co. 
v.  Mortimer,  7  Pick.  166,  19  Am.  Dec.  266.  And  why  should  it  not 
be  so?  If  the  defendant  paid  bona  fide  the  value  of  the  property,  the 
plaintiff  is  not  injured.  The  owner  had  good  right  to  sell  to  whom 
he  pleased,  and  to  prefer  any  other  of  his  creditors  to  the  plaintiff. 
If  the  fraudulent  conduct  of  the  defendant  has  done  no  injury  to  the 
plaintiff,  he  cannot  complain.  He  cannot  have  the  aid  of  the  law  to 
speculate  upon  the  defendant's  fraud.  The  law  will  protect  him  from 
damage,  but  will  not  enable  him  to  derive  advantage  from  the  fraudu- 
lent conduct  of  the  defendant.  This  action,  if  sustained,  would  es- 
tablish a  precedent  which  would  produce  in  practice  great  incon- 
venience, and  oftentimes  do  manifest  injustice.  If  the  plaintiff  may 
maintain  this  action  against  the  defendant,  so  may  every  creditor  of 
Thompson.  The  plaintiff  had  done  nothing  to  give  him  priority. 
Shall  the  fraudulent  purchaser  be  holden  to  pay  all  the  debts  of  the 
fraudulent  vendor?  Justice  does  not  require  this.  The  conveyance 
might  be  fraudulent  in  law,  and  yet  there  might  be  no  moral  turpitude 
In  the  transaction.  The  property  conveyed  might  be  very  small,  and 
the  debts  very  large.  Shall  the  value  of  the  property  transferred  be 
apportioned  among  all  the  creditors?  By  what  rules  shall  the  appor- 
tionment be  made?  Shall  the  creditor  who  first  sues  be  entitled  to 
the  whole,  if  his  debt  be  large  enough  to  require  the  whole  for  its 
satisfaction?  If  one  creditor  should  attach  the  property  specifically, 
another  should  summon  the  fraudulent  vendee  as  trustee  of  the  vendor, 
and  a  third  should  commence  an  action  like  this,  which  would  have 
the  preference  ?  Can  the  same  party  resort  to  more  than  one  of  these 
remedies  at  the  same  time?  And  would  the  judgment  in  the  one  be  a 
bar  to  the  other?  Many  cases  might  occur  in  which  it  would  be  ex- 


GENERAL  PRINCIPLES.  19 

tremely  difficult  to  adopt  any  rule  of  damages  which  would  do  justice 
to  all  the  parties  interested. 

But  besides  these  practical  inconveniences,  which  are  of  themselves 
insurmountable,  there  is  another  objection  fatal  to  the  present  action. 
The  injury  complained  of  is  too  remote,  indefinite,  and  contingent- 
To  maintain  an  action  for  the  deceit  or  fraud  of  another,  it  is  indis- 
pensable that  the  plaintiff  should  show,  not  only  that  he  has  sus- 
tained damage  and  that  the  defendant  has  committed  a  tort,  but  that 
the  damage  is  the  clear  and  necessary  consequence  of  the  tort,  and 
that  it  can  be  clearly  defined  and  ascertained.  What  damage  has  the 
plaintiff  sustained  by  the  transfer  of  his  debtor's  property?  He  has 
lost  no  lien,  for  he  had  none.  No  attachment  has  been  defeated,  for 
none  had  been  made.  He  has  not  lost  the  custody  of  his  debtor's 
body,  for  he  had  not  arrested  him.  He  has  not  been  prevented  from 
attaching  the  property  or  arresting  the  body  of  his  debtor,  for  he 
never  had  procured  any  writ  of  attachment  against  him.  He  has  lost 
no  claim  upon  or  interest  in  the  property,  for  he  never  had  acquired 
either.  The  most  that  can  be  said  is  that  he  intended  to  attach  the 
property,  and  the  wrongful  act  of  the  defendant  has  prevented  him 
from  executing  his  intention.  Is  this  an  injury  for  which  an  action 
will  lie?  How  can  the  secret  intentions  of  the  party  be  proved? 
It  may  be  he  would  have  changed  this  intention.  It  may  be  the 
debtor  would  have  made  a  bona  fide  sale  of  the  property  to  some 
other  person,  or  that  another  creditor  would  have  attached  it,  or 
that  the  debtor  would  have  died  insolvent  before  the  plaintiff 
could  have  executed  his  intention.  It  is  therefore  entirely  uncertain 
whether  the  plaintiff  would  have  secured  or  obtained  payment  of  his 
debt,  if  the  defendant  never  had  interfered  with  the  debtor  or  his 
property.  Besides,  his  debt  remains  as  valid  as  it  ever  was.  He  may 
yet  obtain  satisfaction  from  property  of  his  debtor,  or  his  debtor  may 
return  and  pay  him.  On  the  whole,  it  does  not  appear  that  the  tort 
of  the  defendant  caused  any  damage  to  the  plaintiff.  But  even  if  so, 
yet  it  is  too  remote,  indefinite,  and  contingent  to  be  the  ground  of 
an  action. 

Among  the  many  cases  cited  by  the  plaintiff's  counsel,  those  of 
Adams  v.  Paige,  7  Pick.  542;  Yates  v.  Joyce,  n  Johns.  136;  and 
Smith  v.  Tonstall,  Carth.  3, — bear  the  greatest  resemblance  to  the 
case  at  bar.  But  an  examination  of  these  cases  will  not  only  show 
that  there  is  an  obvious  and  broad  distinction  between  them  and  the 
one  under  consideration,  but  that  the  principles  adopted  in  all  of  them 
support  the  ground  now  taken  by  the  court.  In  Adams  v.  Paige  the 
plaintiffs  had  made  an  attachment  of  the  property  of  their  debtor. 
The  two  defendants,  one  of  whom  was  the  debtor,  had  caused  a  pre- 
vious attachment  to  be  made  of  the  same  property  on  a  fictitious  debt 
which  they  had  created  for  the  purpose  of  preventing  attachments  on 
bona  fide  debts.  The  suit  upon  which  the  fraudulent  attachment  was 
made  was  pursued  to  judgment,  the  property  attached  was  sold  on 
execution,  and  the  proceeds  of  the  sale  remained  in  the  hands  of  the 


20  LAW  OF  TORTS. 

fraudulent  judgment  debtor.  Now,  by  these  collusive  acts,  the  plain- 
tiffs' attachment  was  defeated,  and  the  price  of  the  property,  which, 
but  for  the  fraudulent  acts  of  the  defendants,  would  have  been  applied 
to  the  satisfaction  of  the  plaintiffs'  execution,  was  holden  by  one  of 
the  defendants.  Here  the  loss  of  the  debt  was  the  consequence  of  the 
loss  of  the  lien,  and  the  loss  of  the  lien  was  the  clear  and  certain  con- 
sequence of  the  fraudulent  conduct  of  the  defendants.  The  injury 
was  direct  and  certain,  and  the  damages  easily  shown  and  defined. 
The  justice  of  the  plaintiffs'  claim  was  very  obvious,  and  their  re- 
covery founded  on  the  soundest  principles  of  law.  Besides,  if  we 
were  looking  for  distinctions  between  Adams  v.  Paige  and  the  case 
at  bar,  it  would  be  sufficient  to  state  that  the  former  was  an  action 
for  a  conspiracy  between  two,  to  defraud  the  plaintiffs  by  means  of  a 
fictitious  debt  and  a  collusive  judgment,  in  which  the  unlawful  con- 
federacy was  the  gist  of  the  action.  In  Yates  v.  Joyce,  the  plaintiff, 
by  means  of  a  judgment  against  his  debtor,  had,  according  to  the 
laws  of  New  York,  acquired  a  lien  on  certain  property,  which  was 
injured  and  reduced  in  value  by  the  tortious  acts  of  the  defendant, 
so  as  to  be  insufficient  to  satisfy  the  plaintiff's  judgment.  The  plain- 
tiff suffered  an  injury  for  which  he  had  no  other  remedy.  The  dam- 
age was  definite  and  certain,  and  was  the  direct  and  necessary  con- 
sequence of  the  defendant's  tort.  His  right  to  recover  was  unques- 
tionable. The  old  case  of  Smith  v.  Tonstall,  Carth.  3,  is  very  similar, 
and  rests  upon  the  same  principle.  The  plaintiff  having  obtained  a 
judgment  against  one  S,  the  defendant  procured  S  to  confess  a  judg- 
ment to  himself  when  nothing  was  due  to  him.  This  collusive  judg- 
ment was  satisfied  by  the  sale  of  goods  on  which  the  plaintiff,  by  his 
prior  judgment,  had  acquired  a  lien;  thus  placing  in  the  defendant's 
hands  the  price  of  goods  which  were  liable  for  the  plaintiff's  judgment. 
In  all  these  cases  the  plaintiffs  had  a  clear  and  valuable  interest  in  or 
lien  on  certain  property,  which  was  defeated  or  destroyed  by  the  tor- 
tious acts  of  the  defendants.  Not  so  in  the  case  at  bar.  The  plaintiff 
does  not  allege  that  he  had  any  special  property  or  any  interest  in  or 
claim  on  any  property  which  was  destroyed  or  injured  by  any  act  of 
the  defendant.  And  we  are  all  of  opinion  that  he  has  not  set  forth 
any  such  ground  of  action  as  can  be  sustained  upon  any  known  prin- 
ciples of  law.  Vernon  v.  Keys,  12  East,  632. 
Judgment  arrested. 

(The  doctrines  established  by  this  case  are  also  upheld  by  the  following  de- 
cisions: Bradley  v.  Fuller,  118  Mass.  239;  Adler  v.  Fenton,  24  How.  407, 
16  L.  Ed.  696 ;  Moody  v.  Burton,  27  Me.  427,  46  Am.  Dec.  612 ;  Hall  v.  Eaton, 
25  Vt  458;  Klous  v.  Hennessey,  13  R.  I.  332;  Austin  v.  Barrows,  41  Conn. 
287 ;  Hurwitz  v.  Hurwitz,  10  Misc.  Rep.  353,  31  N.  Y.  Supp.  25. 

As  to  the  general  rule  that  a  violation  of  a  right  or  duty,  which  is  moral 
only  and  not  legal,  will  not  constitute  a  cause  of  action,  see  Randall  v.  Hazel- 
ton,  12  Allen,  412;  Hutchins  v.  Hutchins,  7  -Hill,  104;  Heywood  v.  Tillson,  75 
Me.  225,  46  Am.  Rep.  373 ;  remarks  of  Stephen,  J.,  in  Alderson  v.  Maddison, 
5  Exch.  Div.,  at  page  296 ;  remarks  of  Lord  Herschell  in  Derry  v.  Peek,  L.  R. 
14  App.  Gas.,  at  page  376.) 


GENERAL  PRINCIPLES.  21 

Illustration  of  the  establishment  of  legal  rights  by  the 
common  law,  in  the  decision  of  "cases  of  novel  im- 
pression." 

(150  N.  Y.  176,  44  N.  E.  773,  34  L.  R.  A.  156,  55  Am.  St  Rep.  670.) 

KUJEK  v.  GOLDMAN  et  al. 
(Court  of  Appeals  of  New  York.    October  6,  1896.) 

DECEIT— WHEN  ACTION  LIES,  THOUGH  THERE  is  No  PBECEDENT  THEBEFOB. 

An  action  lies  against  one  who  induced  plaintiff  to  marry  a  woman  by 
representing  that  she  was  virtuous,  when  she  was  at  the  time  with  child 
by  defendant.  The  fact  that  there  is  no  precedent  for  such  an  action  does 
not  preclude  recovery. 

Appeal  from  Common  Pleas  of  New  York  City  and  County,  Gen- 
eral Term. 

Action  by  Johann  August  Kujek  against  Manassah  L.  Goldman, 
impleaded  with  Katie  Kujek.  No  answer  was  served  .by  defendant 
Kujek,  and  no  judgment  was  taken  against  her.  From  a  judgment 
of  the  general  term  of  the  court  of  common  pleas  (9  Misc.  Rep.  34, 
29  N.  Y.  Supp.  294)  affirming  a  judgment  of  the  city  court  (5  Misc. 
Rep.  360,  25  N.  Y.  Supp.  753)  affirming  a  judgment  entered  on  a 
verdict  against  defendant  Goldman,  he  appeals,  by  permission.  Af- 
firmed. 

Prior  to  January  17,  1891,  the  defendant  Katie  Kujek,  then  named 
Katie  Moritz,  was  an  unmarried  woman  employed  as  a  domestic  in 
the  family  of  the  defendant  Goldman,  by  whom  she  had  become  preg- 
nant. Upon  discovering  the  fact,  the  defendants,  as  it  is  alleged  in 
the  complaint,  conspired  to  conceal  their  disgrace,  and  to  induce  the 
plaintiff  to  marry  the  said  Katie,  and  to  that  end  represented  to  him 
that  she  was  a  virtuous  and  respectable  woman,  and  he,  believing  the 
same,  did  marry  her  on  the  day  last  named.  The  plaintiff,  as  it  was 
further  alleged,  would  not  have  contracted  said  marriage  if  he  had 
known  the  facts.  Subsequently,  and  on  July  29,  1891,  owing  to  such 
pregnancy,  she  gave  birth  to  a  child,  of  which  said  Goldman  was  the 
father.  The  answer  of  Goldman  was,  in  substance,  a  general  denial. 
No  answer  was  served  by  the  other  defendant,  and  no  judgment  was 
taken  against  her.  The  evidence  tended  to  sustain  the  allegations  of 
the  complaint. 

VANN,  J.  (after  stating  the  facts).  The  verdict  of  the  jury  has 
established  as  the  facts  of  this  case,  beyond  our  power  to  review,  that 
the  plaintiff  married  Katie  Moritz  in  the  belief  that  she  was  a  virtuous 
girl,  induced  by  the  representations  of  the  defendant  to  that  effect 
when  in  fact  she  was  at  the  time  pregnant  by  the  defendant  himself. 
The  case  was  submitted  to  the  jury  upon  the  theory  that  if  Goldman, 
knowing  that  Katie  was  unchaste,  by  false  representations  that  she 


22  LAW  OF  TORTS. 

was  virtuous  induced  the  plaintiff  to  marry  her,  he  was  entitled  to 
recover  damages,  and  the  jury  found  a  verdict  in  his  favor  for  $2,000. 
While  no  precedent  is  cited  for  such  an  action,  it  does  not  follow  that 
there  is  no  remedy  for  the  wrong,  because  every  form  of  action,  when 
brought  for  the  first  time,  must  have  been  without  a  precedent  to  sup- 
port it.     Courts  sometimes  of  necessity  abandon  their  search  for  prec- 
edents, and  yet  sustain  a  recovery  upon  legal  principles  clearly  ap- 
plicable to  the  new  state  of  facts,  although  there  was  no  direct  prec- 
edent for  it,  because  there  had  never  been  an  occasion  to  make  one. 
In  remote  times,  when  actions  were  so  carefully  classified  that  a  mis- 
take in  name  was  generally  fatal  to  the  case,  a  form  of  remedy  was 
devised  by  the  courts  to  cover  new  wrongs  as  they  might  occur,  so  as 
to  prevent  a  failure  of  justice.     This  was  called  an  "action  on  the 
case,"  which  was  employed  where  the  right  to  sue  resulted  from  the 
peculiar  circumstances  of  the  case,  and  for  which  the  other  forms  of 
action  gave  no  remedy.     26  Am.  &  Eng.  Enc.  Law,  694.     For  in- 
stance, the  action  for  enticing  away  a  man's  wife,  now  well  estab- 
lished, was  at  first  earnestly  resisted  upon  the  ground  that  no  such 
action  had  ever  been  brought.     In  an  early  case  the  court  answered 
this  position  by  saying:     "The  first  general  objection  is  that  there  is 
no  precedent  of  any  such  action  as  this,  and  that,  therefore,  it  will 
not  lie;  and  the  objection  is  founded  on  Litt.  §  108,  and  Co.  Litt.  8ib, 
and  several  other  books.     But  this  general  rule  is  not  applicable  to 
the  present  case.     It  would  be  if  there  had  been  no  special  action  on 
the  case  before.     A  special  action  on  the  case  was  introduced  for  this 
reason:   that  the  law  will  never  suffer  an  injury  and  a  damage  with- 
out a  remedy,  but  there  must  be  new  facts  in  every  special  action  on 
the  case."     Winsmore  v.  Greenbank,  Willes,  577,  580.     As  was  re- 
cently said  by  this  court  in  an  action  then  without  precedent,  "If  the 
most  that  can  be  said  is  that  the  case  is  novel,  and  is  not  brought 
plainly  within  the  limits  of  some  adjudged  case,  we  think  such  fact 
not  enough  to  call  for  a  reversal  of  the  judgment."     Piper  v.  Hoard, 
107  N.  Y.  73,  76,  13  N.  E.  626,  629,  i  Am.  St.  Rep.  789.     The  ques- 
tion therefore  is  not  whether  there  is  any  precedent  for  the  action, 
but  whether  the  defendant  inflicted  such  a  wrong  upon  the  plaintiff 
as  resulted  in  lawful  damages.     The  defendant  by  deceit  induced  the 
plaintiff  to  enter  into  a  marriage  contract,  whereby  he  assumed  certain 
obligations,  and  became  entitled  to  certain  rights.     Among  the  obliga- 
tions assumed  was  the  duty  of  supporting  his  wife  in  sickness  and 
in  health,  and  he  discharged  this  obligation  by  expending  money  to  fit 
up  rooms  for  housekeeping,  in  keeping  house  with  his  wife,  and  caring 
for  her  during  confinement,  when  she  bore  a  child,  not  to  him,  but 
to  the  defendant.     Among  the  rights  acquired  was  the  right  to  his 
wife's  services,  companionship,  and  society.     By  the  fraudulent  con- 
duct of  the  defendant,  he  was  not  only  compelled  to  expend  money 
to  support  a  woman  whom  he  would  not  otherwise  have  married,  but 
was  also  deprived  of  her  services  while  she  was  in  childbed.      He 
thus  sustained  actual  damages  to  some  extent;   and  as  the  wrong  in- 


GENERAL  PRINCIPLES.  23 

volved  not  only  malice,  but  moral  turpitude  also,  in  accordance  with 
the  analogies  of  the  law  upon  the  subject  the  jury  had  the  right  to 
make  the  damages  exemplary.  By  thus  applying  well-settled  prin- 
ciples upon  which  somewhat  similar  actions  are  founded,  this  action 
can  be  sustained,  because  there  was  a  wrongful  act  in  the  fraud,  that 
was  followed  by  lawful  damages,  in  the  loss  of  money  and  services. 
The  fact  that  the  corruption  of  the  plaintiff's  wife  was  before  he  mar- 
ried her  does  not  affect  the  right  of  action,  as  the  wrong  done  to  him 
was  not  by  her  defilement,  but  by  the  representation  of  the  defendant 
that  she  was  pure  when  he  knew  that  she  was  impure,  in  order  to 
bring  about  the  marriage.  It  is  difficult  to  see  why  a  fraud  which, 
if  practiced  with  reference  to  a  contract  relating  to  property  merely, 
would  support  an  action,  should  not  be  given  the  same  effect  when  it 
involves  a  contract  affecting,  not  only  property  rights,  but  also  the 
most  sacred  relation  of  life.  Fraudulent  representations  with  refer- 
ence to  the  amount  of  property  belonging  to  either  party  to  a  pro- 
posed marriage,  made  by  a  third  person  for  the  purpose  of  bringing 
about  the  marriage,  are  held  to  constitute  an  actionable  wrong,  and 
the  usual  remedy  is  to  require  the  person  guilty  of  the  fraud  to  make 
his  representations  good.  Piper  v.  Hoard,  supra;  Mon^efiori  v.  Monte- 
fiori,  I  W.  Bl.  363;  Ath.  Mar.  Sett.  484.  In  such  cases  the  injury 
is  more  tangible,  and  the  measure  of  damages  more  readily  applied, 
than  in  the  case  before  us;  but  both  rest  upon  the  principle  that  he 
who  by  falsehood  and  fraud  induces  a  man  to  marry  a  woman  is  guilty 
of  a  wrong  that  may  be  remedied  by  an  action,  the  amount  of  dam- 
ages to  be  recovered  depending  upon  the  circumstances  of  the  particu- 
lar case. 

We  have  thus  far  considered  the  right  of  action  as  resting  upon 
some  pecuniary  loss,  which,  although  trifling  in  amount,  may  be  re- 
covered as  a  matter  of  right,  leaving  it  to  the  jury,  in  their  sound  dis- 
cretion, as  in  a  case  for  the  seduction  of  a  child  or  servant,  to  amplify 
the  damages  by  way  of  punishment  and  example.  We  think,  how- 
ever, that  the  action  can  be  maintained  upon  a  broader  and  more  satis- 
factory ground,  and  that  is  the  loss  of  consortium,  or  the  right  of 
Jthe  husband  to  the  conjugal  fellowship  and  society  of  his  wife.  The 
loss  of  consortium  through  the  misconduct  of  a  third  person  has  long 
been  held  an  actionable  injury,  without  proof  of  any  pecuniary  loss. 
Bennett  v.  Bennett,  116  N.  Y.  584,  23  N.  E.  17,  6  L.  R.  A.  553 ;  Hutch- 
eson  v.  Peck,  5  Johns.  196;  Hermance  v.  James,  32  How.  Prac.  142. 
As  has  been  well  said  by  a  recent  writer:  "To  entice  away,  or  cor- 
rupt the  mind  and  affection  of,  one's  consort,  is  a  civil  wrong,  for 
which  the  offender  is  liable  to  the  injured  husband  or  wife.  The  gist 
of  the  action  is  not  in  the  loss  of  assistance,  but  the  loss  of  consortium 
of  the  wife  or  husband,  under  which  term  are  usually  included  the 
person's  affection,  society,  or  aid."  Bigelow,  Torts,  153.  The  dam- 
ages are  caused  by  the  wrongful  deprivation  of  that  to  which  the 
husband  or  wife  is  entitled  by  virtue  of  the  marriage  contract.  They 
rest  upon  the  loss  of  a  right  which  the  marriage  relation  gives,  and 


24  LAW  OF  TORTS. 

of  which  it  is  an  essential  feature.  Whether  that  right  is  wrongfully 
taken  away  after  it  is  acquired,  or  the  person  entitled  to  it  is  wrong- 
fully prevented  from  acquiring  it,  does  not  change  the  effect  or  lessen 
the  injury.  While  the  plaintiff  has  not  been  actually  deprived  of  the 
society  of  his  wife,  he  has  been  deprived  of  that  which  made  her 
society  of  any  value,  the  same  as  if  she  had  been  seduced  after  mar- 
riage.' Although  the  formal  right  to  consortium  may  remain,  the  sub- 
stance has  been  taken  away.  In  other  words,  when  he  entered  into 
the  marriage  relation  he  was  entitled  to  the  company  of  a  virtuous 
woman,  yet  through  the  fraud  of  the  defendant  that  right  never  came 
to  him.  He  has  never  enjoyed  the  chief  benefit  springing  from  the 
contract  of  marriage,  which  is  the  comfort,  founded  upon  affection 
and  respect,  derived  from  conjugal  society.  If  the  defendant  had  de- 
prived the  plaintiff  of  his  right  to  consortium  after  marriage,  the  law 
would  have  afforded  a  remedy  'by  the  award  of  damages.  Yet  the 
plaintiff,  through  the  fault  of  the  defendant,  has  suffered  a  loss  of 
the  same  nature  and  to  the  same  extent,  except  that,  instead  of  losing 
what  he  once  had,  he  has  been  prevented  from  getting  it  when  he  was 
entitled  to  it.  This  is  a  difference  in  form  only,  and  is  without  sub- 
stantial foundation.  The  injury,  although  effected  by  fraud  before 
marriage,  instead  of  by  seduction  after  marriage,  was  the  same,  and 
why  should  not  the  remedy  be  the  same?  While  the  method  of  in- 
flicting the  injury  is  not  the  same,  as  it  is  tortious  in  character,  has 
substantially  the  same  effect,  and  causes  damages  of  the  same  nature 
and  to  the  same  extent,  why  should  damages  be  recovered-  in  the  one 
case  if  not  in  the  other?  Where  false  representations  are  willfully 
made  as  to  a  material  fact,  for  the  purpose  of  inducing  another  to  act 
upon  them,  and  he  does  so  act  to  his  injury,  he  may  recover  such 
damages  as  proximately  result  from  the  deception.  The  representa- 
tions in  this  case,  as  the  jury  has  found,  were  made  to  promote  the 
marriage,  and  they  were  false,  as  the  defendant  well  knew.  They 
were  clearly  material.  The  plaintiff  acted  upon  them,  and  was  there- 
by injured;  for  he  made  a  contract  entitling  him  to  certain  rights, 
which  he  has  not  received,  and  which  the  defendant  knew  he  could 
never  receive.  Here  are  all  the  elements  of  a  good  cause  of  action 
founded  upon  fraud  resulting  in  damage.  The  contract  induced  by 
the  fraud  was  of  a  peculiar  nature,  but  it  was  in  law  simply  a  con- 
tract, conferring  certain  rights,  and  imposing  certain  obligations. 
While  it  is  not  agreeable  to  treat  a  subject  of  sacred  importance  upon 
this  narrow  basis,  it  is  necessary  to  do  so,  for  our  law  considers  mar- 
riage in  no  other  light  than  as  a  civil  contract.  If  the  defendant  had 
induced  the  plaintiff  to  enter  into  any  other  contract  by  making  false 
statements  of  fact,  which  if  true  would  have  made  the  contract  more 
valuable,  he  would  have  been  liable  for  all  the  damages  that  naturally 
resulted.  If  he  had  induced  the  very  marriage  contract  under  con- 
sideration by  representing  to  the  plaintiff  that  he  owed  his  proposed 
wife  a  certain  sum  of  money,  according  to  the  common  law,  which 
entitles  the  husband  to  the  personal  property  of  his  wife,  he  could 


GENERAL  PRINCIPLES.  25 

have  been  compelled  to  make  his  representations  good  by  the  payment 
of  that  sum.  Montefiori  v.  Montefiori,  supra;  Redman  v.  Redman, 
i  Vern.  348 ;  Neville  v.  Wilkinson,  I  Brown,  Ch.  Cas.  543 ;  Scott  v. 
Scott,  i  Cox,  378.  These  cases,  as  well  as  the  more  important  case 
of  Piper  v.  Hoard,  supra,  rest  upon  the  principle  that  fraudulent  rep- 
resentations as  to  the  pecuniary  condition  of  one  party  to  a  proposed 
marriage,  made  by  a  third  person  to  the  other  party  thereto,  in  order 
to  promote  the  marriage,  are  actionable,  and  authorize  the  recovery 
of  such  damages  as  may  be  proved.  In  this  case  we  have  a  repre- 
sentation that  did  not  relate  to  property  directly,  although  it  involved 
rights  in  the  nature  of  property,  but  did  relate  to  character,  and  so 
vitally  that  its  falsity  was  destructive  of  all  happiness  belonging  to 
the  plaintiff  by  virtue  of  his  marriage.  The  injury  was  not  merely 
sentimental,  for,  as  has  been  shown,  it  extended  to  a  right  which  the 
law  recognizes  as  of  pecuniary  value,  and  for  the  wrongful  destruc- 
tion of  which  it  awards  damages.  We  think  that  the  facts  found  war- 
rant the  recovery,  and,  after  examining  all  the  exceptions,  are  of  the 
opinion  that  the  judgment  should  be  affirmed,  with  costs.  All  concur, 
except  BARTLETT,  J.,  not  voting. 
Judgment  affirmed. 

(For  other  interesting  cases  "of  a  novel  impression,"  see  Cleary  v.  Booth, 
[1893]  1  Q.  B.  465 ;  Western  Counties  Manure  Co.  v.  Lawes  Chemical  Manure 
Co.,  L.  R.  9  Ex.  218 ;  Randlette  v.  Judkins,  77  Me.  114,  52  Am.  Rep.  747 ;  Lamb 
v.  Stone,  11  Pick.  527 ;  Winterbottom  v.  Wright  10  M.  &  W.  109.  These  last 
two  cases  are  reported  infra,  pages  15,  151.) 


(121  Mass.  393,  23  Am.  Rep.  279.) 

RICE  v.  COOLIDGE  et  al.  (in  part). 

(Supreme  Judicial  Court  of  Massachusetts.    December  1,  1876.) 

DEFAMATION — SUBORNATION  OF  PERJURY — ACTION  WITHOUT  PRECEDENT. 

One  who  suborns  witnesses  to  swear  falsely  to  defamatory  statements 
concerning  another,  in  a  suit  to  ivhich  neither  of  them  is  a  party,  is  liable 
to  an  action  by  the  person  whose  character  is  so  defamed.  That  the  per- 
jured witness  is  protected  by  his  personal  privilege  from  a  civil  suit  does 
not  exempt  the  person  who  suborns  him,  they  being  joint  tort-feasors. 
Nor  is  the  novelty  of  such  an  action  a  valid  objection  thereto. 

Demurrer  to  declaration,  Suffolk  County. 

Action  by  Sarah  M.  Rice  against  John  T.  Coolidge  and  others.  De- 
fendants demurred  to  plaintiff's  declaration. 

MORTON,  J.  This  is  an  action  of  tort.  The  principal  question 
raised  by  the  demurrer  is  whether  the  plaintiff's  declaration  states 
any  legal  cause  of  action.  Each  count  alleges,  in  substance,  that  a 
proceeding  for  divorce  was  pending  in  the  courts  of  the  state  of  Iowa 
between  Joseph  S.  Coolidge  and  Mary  L,.  Coolidge,  in  which  the  latter 


26  LAW  OF  TORTS. 

alleged  that  the  said  Joseph  S.  Coolidge  had  been  guilty  of  adultery 
with  the  plaintiff ;  that  the  defendants  conspired  together  and  with  the 
said  Mary  L.  Coolidge  to  procure  and  suborn  witnesses  to  falsely  tes- 
tify in  support  of  said  charges  of  adultery;  and  that  the  defendants, 
in  pursuance  and  execution  of  said  conspiracy,  did  procure  and  suborn 
certain  witnesses  named,  to  testify  in  said  divorce  suit,  and  to  falsely 
swear  to  criminal  sexual  intercourse  between  the  plaintiff  and  said 
Joseph  S.  Coolidge,  and  between  the  plaintiff  and  other  persons,  and 
to  various  other  acts  and  things  which,  if  believed,  would  tend  to 
bring  disgrace  and  infamy  upon  the  plaintiff.  The  question  is  pre- 
sented, therefore,  whether  the  plaintiff  can  maintain  an  action  of 
tort,  in  the  nature  of  the  common-law  action  on  the  case,  against  the 
defendants  for  suborning  witnesses  to  falsely  swear  to  defamatory 
statements  concerning  the  plaintiff  in  a  suit  in  which  neither  of  the 
parties  to  this  suit  was  a  party. 

It  requires  no  argument  to  show  that  the  acts  charged  as  done  by 
the  defendants,  if  proved,  are  a  great  wrong  upon  the  plaintiff.  It 
is  a  general  rule  of  the  common  law  that  a  man  shall  have  a  remedy 
for  every  injury.  The  plaintiff  should  have  a  remedy  for  the  injury 
done  to  her  by  the  defendants,  unless  there  are  some  other  rules  of 
law,  or  some  controlling  considerations  of  public  policy,  which  take 
the  case  out  of  this  rule.  The  defendants  contend  that  the  witnesses 
who  uttered  the  defamatory  statements  are  protected  from  an  action, 
because  they  were  statements  made  in  the  course  of  judicial  proceed- 
ings, and  that,  therefore,  a  person  who  procured  and  suborned  them 
to  make  the  statements  is  not  liable  to  an  action.  It  seems  to  be  set- 
tled by  the  English  authorities  that  judges,  counsel,  parties,  and  wit- 
nesses are  absolutely  exempted  from  liability  to  an  action  for  defama- 
tory words  published  in  the  course  of  judicial  proceedings.  Hender- 
son v.  Broomhead,  4  Hurl.  &  N.  569;  Revis  v.  Smith,  18  C.  B.  126; 
Dawkins  v.  Rokeby,  L.  R.  8  Q.  B.  255,  and  cases  cited;  affirmed,  L. 
R.  7  H.  L.  744;  Seaman  v.  Netherclift,  I  C.  P.  Div.  540.  The  same 
doctrine  is  generally  held  in  the  American  courts,  with  the  qualifica- 
tion, as  to  parties,  counsel,  and  witnesses,  that,  in  order  to  be  privi- 
leged, their  statements  made  in  the  course  of  an  action  must  be  per- 
tinent and  material  to  the  case.  White  v.  Carroll,  42  N.  Y.  161,  I 
Am.  Rep.  503;  Smith  v.  Howard,  28  Iowa,  51;  Barnes  v.  McCrate, 
32  Me.  442;  Kidder  v.  Parkhurst,  3  Allen,  393;  Hoar  v.  Wood,  3 
Mete.  (Mass.)  193.  In  the  last-cited  case,  Chief  Justice  Shaw  says: 
"We  take  the  rule  to  be  well  settled  by  the  authorities  that  words 
spoken  in  the  course  of  judicial  proceedings,  though  they  are  such 
as  impute  crime  to  another,  and  therefore,  if  spoken  elsewhere,  would 
import  malice  and  be  actionable  in  themselves,  are  not  actionable,  if 
they  are  applicable  and  pertinent  to  the  subject  of  inquiry."  We  as- 
sume, therefore,  for  the  purposes  of  this  case,  that  the  plaintiff  cannot 
maintain  an  action  against  the  witnesses  in  the  suit  in  Iowa  for  their 
defamatory  statements,  though  they  were  false.  But  it  does  not  fol- 
low that  she  may  not  maintain  an  action  against  those  who,  with 


GENERAL  PRINCIPLES.  27 

malice  and  intent  to  injure  her,  procured  and  suborned  those  wit- 
nesses to  testify  falsely.  The  reasons  why  the  testimony  of  witnesses 
is  privileged  are  that  it  is  given  upon  compulsion,  and  not  voluntarily ; 
and  that,  in  order  to  promote  the  most  thorough  investigation  in 
courts  of  justice,  public  policy  requires  that  witnesses  shall  not  be  re- 
strained by  the  fear  of  being  vexed  by  actions  at  the  instance  of  those 
who  are  dissatisfied  with  their  testimony.  But  these  reasons  do  not 
apply  to  a  stranger  to  the  suit,  who  procures  and  suborns  false  wit- 
nesses, and  the  rule  should  not  be  extended  beyond  those  cases  which 
are  within  its  reasons. 

The  argument  that  an  accessory  cannot  be  held  civilly  liable  for  an 
act  for  which  no  remedy  can  be  had  against  the  principal  is  not  satisfac- 
tory to  our  minds.  The  perjured  witness  and  the  one  who  suborns  him 
are  joint  tort-feasors,  acting  in  conspiracy  or  combination  to  injure 
the  party  defamed.  The  fact  that  one  of  them  is  protected  from  a 
civil  suit  by  a  personal  privilege  does  not  exempt  the  other  joint 
tort-feasor  from  such  suit.  A  similar  argument  was  disregarded  by 
the  court  in  Emery  v.  Hapgood,  7  Gray,  55,  66  Arrr.  Dec.  459,  where 
it  was  held  that  the  defendant,  who  instigated  and  procured  an  officer 
to  arrest  the  plaintiff  upon  a  void  warrant,  was  liable  to  an  action 
of  tort  therefor,  although  the  officer  who  served  the  warrant  was 
protected  from  an  action  for  reasons  of  public  policy.  The  defend- 
ants rely  upon  the  cases  of  Bostwick  v.  Lewis,  2.  Day,  447,  and  Smith 
v.  Lewis,  3  Johns.  157,  3  Am.  Dec.  469.  But  those  cases  turn  upon 
a  principle  which  does  not  apply  in  the  case  at  bar.  The  facts  in  those 
cases  were  as  follows :  Lewis  brought  an  action  in  Connecticut  against 
several  defendants,  in  which  he  prevailed.  Afterwards  Bostwick,  one 
of  the  defendants  in  the  original  action,  brought  an  action  in  Connecti- 
cut against  Lewis,  for  suborning  a  witness  in  that  action;  and  Smith, 
another  of  the  defendants,  brought  a  similar  action  in  New  York. 
It  was  held  in  each  case  that  the  action  could  not  be  maintained,  be- 
cause, in  the  language  of  Mr.  Justice  Kent,  it  was  "an  attempt  to 
overhaul  the  merits"  of  a  former  suit.  The  case  of  Dunlap  v.  Glid- 
den,  31  Me.  435,  52  Am.  Dec.  625,  is  to  the  same  effect.  Although 
the  parties  to  a  former  action  cannot  retry  its  merits  while  a  judg- 
ment therein  is  in  force  and  unreversed,  yet  any  person  who  was  not 
a  party  to  the  action  or  in  privity  with  a  party  may,  in  a  collateral 
action,  impeach  the  judgment  and  overhaul  the  merits  of  the  former 
action.  Those  cases,  therefore,  are  not  decisive  of  the  case  at  bar. 

The  defendants  argue  that  an  action  of  this  nature  ought  not  to 
be  maintained,  because  the  plaintiff  therein  might,  by  the  testimony 
of  a  single  witness,  prove  that  a  witness  in  another  action  had  com- 
mitted perjury.  The  rule  of  law  that  a  man  cannot  be  convicted  of 
perjury  upon  the  unaided  testimony  of  one  witness  is  a  rule  applica- 
ble only  to  criminal  proceedings.  The  argument  may  go  to  show 
that  the  rule  ought  to  be  extended  to  civil  cases  in  which  perjury  is 
•charged  against  a  witness,  but  it  does  not  furnish  a  satisfactory  rea- 


28  LAW  OF  TORTS. 

son  why  a  plaintiff  should  be  altogether  deprived  of  a  remedy  for  an 
injury  inflicted  upon  him. 

It  is  also  urged,  as  an  argument  against  the  maintenance  of  this 
action,  that  it  is  a  novelty.  The  fact  that  an  action  is  without  a  prece- 
dent would  call  upon  the  court  to  consider  with  care  the  question 
whether  it  is  justified  by  correct  principles  of  law;  but,  if  this  is 
found,  it  is  without  weight.  In  answer  to  the  same  argument,  Lord 
Chief  Justice  Willes  said :  "A  special  action  on  the  case  was  intro- 
duced for  this  reason,  that  the  law  will  never  suffer  an  injury  and 
a  damage  without  a  remedy,  but  there  must  be  new  facts  in  every  spe- 
cial action  on  the  case."  Winsmore  v.  Greenbank,  Willes,  577.  Up- 
on a  careful  consideration  of  the  case,  we  are  of  opinion  that  there  are 
no  rules  of  law  and  no  reasons  of  public  policy  which  deprive  the 
plaintiff  of  her  remedy  for  the  wrong  done  her  by  the  defendants  by 
suborning  witnesses  to  defame  her  character. 

Demurrer   overruled. 

(It  is  well  settled  that,  at  common  law,  a  party  to  an  action,  who  has  been 
cast  in  a  judgment  through  the  perjury  of  a  witness  who  testified  against  him, 
cannot  maintain  a  civil  action  against  the  witness  for  perjury,  nor  against  the 
opposite  party  for  suborning  the  perjury.  Verplanck  v.  Van  Buren,  76  N.  Y.,  at 
page  259 ;  Young  v.  Leach,  27  App.  Div.  293,  50  N.  Y.  Supp.  670 ;  Garing  v. 
Fraser,  76  Me.  37 ;  Taylor  v.  Bidwell,  65  Cal.  489,  4  Pac.  491 ;  cf.  Bynoe  v.  Bank 
of  England,  [1902]  1  K.  B.  467.  The  reason  why  the  opposing  party  is  not  liable 
is  that  an  action  against  him  would  be  "an  attempt  to  re-examine  the  merits 
of  a  ju'dgment  in  a  collateral  suit  between  the  same  parties.  Reasons  of 
public  policy  and  uniform  authority  forbid  the  attacking  and  impeachment  of 
a  judgment  in  this  way."  Stevens  v.  Rowe,  59  N.  H.  578,  47  Am.  Rep.  231. 
The  reason  why  the  witness  is  not  liable  is  that  "public  policy  and  the  safe 
administration  of  justice  require  that  witnesses  be  privileged  against  any  re- 
straint excepting  that  imposed  by  the  penalty  for  perjury,  and  that  the  merits 
of  the  judgment  cannot  be  re-examined  by  a  trial  of  the  witness's  testimony  In 
a  suit  against  him."  Id.  Sometimes,  however,  by  modern  statutes,  the  above 
rule  is  changed,  and  an  action  will  lie  for  perjury  or  subornation  of  perjury. 
Landers  v.  Smith,  78  Me.  212,  3  Atl.  463.) 


Illustration  of  the  creation  of  legal  rights  or  legal  duties 
by  statute. 

(78  N.  Y.  310,  34  Am.  Rep.  536.) 

WILLY  v.  MULLEDY  (in  part). 

(Court  of  Appeals  of  New  York.    September  30,  1879.) 

L  NEGLIGENCE— STATUTORY  DUTY— FIRE-ESCAPES. 

Laws  N.  Y.  1873,  c.  863,  tit.  13,  §  36,  which  requires  the  owners  of  tene- 
ment-houses to  provide  them  with  fire-escapes,  etc.,  imposes  on  such  an 
owner  an  absolute  duty  for  the  benefit  of  his  tenants,  and  he  is  liable  for 
a  breach  of  such  duty  causing  damage  to  a  tenant 


GENERAL  PRINCIPLES.  29 

2.  SAME— CONTRIBUTORY  NEGLIGENCE. 

That  a  tenant  had  taken  rooms  in  such  a  house  not  provided  with  a  fire- 
escape,  and  had  occupied  them  for  a  few  days  previous  to  the  fire  causing 
the  injury  complained  of  by  him,  does  not  relieve  the  owner  from  liability 
therefor,  where  it  is  not  shown  that  the  tenant  knew  there  was  no  fire- 
escape.  He  had  the  right  to  assume  that  the  statutory  duty  had  been  per- 
formed, and  owed  no  duty  to  tlau  owner  to  make  an  examination  to  see 
whether  it  had  been  done. 

8.  SAME— EVIDENCE. 

In  such  a  case,  on  the  question  of  the  probability  that  an  occupant  of  the 
house,  whose  death  was  caused  by  the  fire,  would  have  escaped  had  there 
been  a  fire-escape  as  required  by  the  statute,  it  may  be  inferred  from  the 
construction  of  the  house  and  the  structure  of  fire-escapes  where  one  would 
probably  have  been  placed. 

4.  SAME. 

And  the  facts  that  such  person  knew  that  there  was  a  scuttle  in  the 
roof,  had  time  after  notice  of  the  fire  to  reach  it,  and  made  efforts  to 
escape,  are  suflicient  to  justify  a  jury  in  finding  that  such  person  tried 
to  escape  in  that  direction,  and  failed  for  want  of  a  ladder  to  the  scuttle, 
which  the  owner  had  not  provided  as  required  by  the  statute. 

Appeal  from  City  Court  of  Brooklyn,  General  Term. 

Action  by  Joseph  Willy,  as  administrator,  etc.,  of  his  wife,  against 
Patrick  Mulledy,  for  damages  for  the  death  of  plaintiff's  wife,  alleged 
to  have  been  caused  by  neglect  on  the  part  of  defendant.  Defendant 
appeals  from  a  judgment  of  the  general  term  affirming  a  judgment 
for  plaintiff  entered  upon  a  verdict,  and  affirming  an  order  denying 
a  motion  for  a  new  trial. 

EARL,  J.  This  is  an  action  to  recover  damages  for  the  death  of 
plaintiff's  wife,  alleged  to  have  been  caused  by  the  fault  of  the  defend- 
ant. Prior  to  the  ist  day  of  November,  1877,  the  plaintiff  hired  of 
the  defendant  certain  apartments  in  the  rear  of  the  third  story  of  a 
tenement-house  in  the  city  of  Brooklyn,  and  with  his  wife  and  infant 
child  moved  into  them,  on  that  day.  On  the  5th  day  of  the  same 
month,  in  the  day-time,  a  fire  took  place,  originating  in  the  lower  story 
of  the  house,  and  plaintiff's  wife  and  child  were  smothered  to  death. 

It  is  claimed  that  the  defendant  was  in  fault  because  he  had  not 
constructed  for  the  house  a  fire-escape,  and  because  he  had  not  placed 
in  the  house  a  ladder  for  access  to  the  scuttle.  Section  36,  tit.  13,  c. 
863,  Laws  1873,  provides  that  every  building  in  the  city  of  Brooklyn 
shall  have  a  scuttle  or  place  of  egress  in  the  roof  thereof  of  proper 
size;  and  "shall  have  ladders  or  stairways  leading  to  the  same;  and 
all  such  scuttles  and  stairways  or  ladders  leading  to  the  roof  shall  be 
kept  in  readiness  for  use  at  all  times."  It  also  provided  that  houses 
like  that  occupied  by  the  plaintiff  "shall  be  provided  with  such  fire- 
escapes  and  doors  as  shall  be  directed  and  approved  by  the  commis- 
sioners [of  the  department  of  fire  and  buildings;]  and  the  owner  or 
owners  of  any  building  upon  which  any  fire-escapes  may  now  or  here- 
after be  erected  shall  keep  the  same  in  good  repair,  and  well  painted, 
and  no  person  shall  at  any  time  place  any  incumbrance  of  any  kind 


3Q  LAW  OF  TORTS. 

whatsoever  upon  said  fire-escapes  now  erected,  or  that  may  hereafter 
be  erected,  in  the  city.     Any  person,  after  being  notified  by  said  com- 
missioners, who  shall  neglect  to  place  upon  any  such  building  the  fire- 
escape  herein  provided  for,  shall  forfeit  the  sum  of  $500,  and  shall  be 
deemed  guilty  of  a  misdemeanor."     Under  this  statute  the  defendant 
was  bound  to  provide  this  house  with  a  fire-escape.     He  was  not  per- 
mitted to  wait  until  he  should  be  directed  to  provide  one  by  the  com- 
missioners.    He  was  bound  to  do  it  in  such  way  as  they  should  direct 
and  approve,  and  it  was  for  him  to  procure  their  direction  and  ap- 
proval.    No  penalty  is  imposed  for  the  simple  omission  to  provide 
one.     The  penalty  can  be  incurred  only  for  the  neglect  to  provide  one 
after  notification  by  the  commissioners.     Here  was,  then,  an  absolute 
duty  imposed  upon  the  defendant  by  statute  to  provide  a  fire-escape, 
and  the  duty  was  imposed  for  the  sole  benefit  of  the  tenants  of  the 
house,  so  that  they  would  have  a  mode  of  escape  in  the  case  of  a  fire. 
For  a  breach  of  this  duty  causing  damage,  it  cannot  be  doubted  that 
the  tenants  have  a  remedy.     It  is  a  general  rule  that  whenever  one 
owes  another  a  duty,  whether  such  duty  be  imposed  by  voluntary  con- 
tract or  by  statute,  a  breach  of  such  duty  causing  damage  gives  a 
cause  of  action.     Duty  and  right  are  correlative,  and  where  a  duty  is 
imposed  there  must  be  a  right  to  have  it  performed.     When  a  statute 
imposes  a  duty  upon  a  public  officer,  it  is  well  settled  that  any  person 
having  a  special  interest  in  the  performance  thereof  may  sue  for  a 
breach  thereof  causing  him  damage,  and  the  same  is  true  of  a  duty 
imposed  by  statute  upon  any  citizen.     Cooley,  Torts,  654;    Hover  v. 
Barkhoof,  44  N.  Y.  113;    jetter  v.  Railroad  Co.,  2  Abb.  Dec.  458; 
Heeney  v.  Sprague,  n  R.  I.  456,  23  Am.  Rep.  502;    Couch  v.  Steel, 
3  El.  &  Bl.  402.     In  Comyn's  Digest,  "Action  upon  Statute,"  F,  it  is 
laid  down  as  the  rule  that,  "in  every  case  where  a  statute  enacts  or 
prohibits  a  thing  for  the  benefit  of  a  person,  he  shall  have  a  remedy 
upon  the  same  statute  for  the  thing  enacted  for  his  advantage,  or  for 
the  recompense  of  a  wrong  done  to  him  contrary  to  the  said  law." 
There  was  no  fire-escape  for  this  house.     But  the  claim  is  made  on 
behalf  of  this  defendant  that  he  is  not  liable  in  this  action,  because 
the  plaintiff  and  his  wife  knew,  when  they  moved  into  the  house  and 
while  they  occupied  the  same,  that  there  was  no  fire-escape,  and  hence 
that  they  voluntarily  took  the  hazard  of  its  absence.     It  is  undoubted- 
ly true  that  the  plaintiff  could  have  stipulated  against  or  have  waived 
the  performance  of  this  duty  imposed  for  his  benefit,  but  this  he  did 
not  do.     There  is  no  proof  of  any  kind  that  it  was  the  intention  of 
the  parties  entering  into  their  contract  that  he  should  take  and  occupy 
this  house  without  a  fire-escape.     There  is  nothing  to  show  that  he 
knew  there  was  no  fire-escape  there  when  he  hired  the  apartments. 
It  is  not  shown  that  his  attention  was  in  any  way  called  to  the  matter 
or  that  he  looked  for  one.     Its  absence  could  be  discovered  only  by 
an  examination  outside  of  the  house,  and  there  is  no  evidence  that  he 
made  such  examination.     He  had  the  right  to  assume  that  the  stat- 
utory duty  had  been  performed.     There  is  no  proof  that  during  his 


GENERAL  PRINCIPLES.  31 

occupancy  he  discovered  the  absence  of  a  fire-escape.  He  was  there 
but  three  days,  excluding  the  day  upon  which  he  moved  in  and  the 
day  upon  which  the  fire  occurred,  and  during  that  time  it  does  not 
appear  how  much  of  the  time  he  was  in  the  house.  There  is  certainly 
no  evidence  that  he  or  his  wife  discovered  that  there  was  no  fire- 
escape,  or  that  their  attention  had  been  called  to  the  matter.  They 
owed  no  duty  to  the  defendant  to  look  and  see  whether  there  was  one 
there  or  not.  They  had  the  right  to  rely  upon  its  presence  there  as  re- 
quired by  the  statute.  But  suppose  they  did  discover  that  there  was 
no  fire-escape  at  some  time  while  there,  after  they  moved  in,  does  such 
discovery  absolve  the  defendant  from  his  duty?  After  making  the 
discovery,  they  were  not  bound  at  once  to  leave  the  house  and  go  into 
the  street.  They  had  a  reasonable  time  to  look  for  and  move  into 
other  apartments ;  and  by  remaining  for  such  reasonable  time  they 
waived  nothing;  and,  if  they  did  not  choose  to  move  out,  they  were 
entitled  to  a  reasonable  time  to  find  the  defendant  and  to  call  upon 
him  to  furnish  the  fire-escape.  By  remaining  in  the  house  for  such 
reasonable  time  after  discovery  of  the  breach  of  duty  on  the  part  of 
the  defendant,  it  could  not  be  said  as  matter  of  law  that  they  waived 
the  performance  thereof,  or  took  upon  themselves  voluntarily  the  haz- 
ard of  all  the  damages  which  they  might  sustain  by  the  non-perform- 
ance thereof.  The  duty  rested  upon  the  defendant  not  solely  to  have 
a  fire-escape  there  when  the  plaintiff  leased  the  premises,  but  it  con- 
tinued to  rest  upon  him ;  and,  before  it  could  be  held  that  the  plaintiff 
absolved  him  in  any  way  from  this  duty,  the  proof  should  be  clear 
and  satisfactory.  Here,  I  hold,  there  was  no  proof  whatever  from 
which  it  could  properly  have  been  found  that  he  did  so  absolve  him. 

But  it  was  needful  for  the  plaintiff  to  show,  not  only  that  there  was 
this  breach  of  duty,  but  that  the  death  of  plaintiff's  wife  was  due  to 
such  breach ;  that  is,  that  her  life  would  have  been  saved  if  there  had 
been  a  fire-escape  there.  It  is  reasonably  certain  that  if  the  defend- 
ant had  placed  the  fire-escape  at  the  rear  of  the  house,  constructed  as 
they  were  required  to  be,  that  the  deceased  would  have  seen  it,  and 
made  her  escape,  as  it  would  have  been  at  one  of  the  windows  of  the 
rear  rooms  which  she  occupied.  But  it  is  said  that  the  defendant  was 
not  bound  to  place  the  fire-escape  at  the  rear  of  his  house,  but  that  he 
could  have  placed  it  in  the  front  of  his  house,  and  that  if  he  had  placed 
it  there  she  could  not  have  escaped.  It  is  probably  true  that  she  could 
not  have  escaped  from  the  front  of  the  house.  But  there  is  no  proof 
where  fire-escapes  are  usually  constructed,  nor  whether  the  front  or 
rear  of  this  particular  house  would  have  been  the  more  suitable  place 
for  the  fire-escape.  I  think  we  may  assume  from  the  manner  in  which 
the  front  part  of  this  house  was  constructed,  and  from  the  structure 
of  fire-escapes,  that  it  is  most  probable  that  it  would  have  been  placed 
on  the  rear  of  the  house.  We  think  upon  the  whole  case  there  was 
enough  to  authorize  the  jury  to  find  that  the  deceased  would  have 
escaped,  if  the  defendant  had  discharged  his  duty  as  the  law  required. 


32  LAW  OF  TORTS. 

Many  of  the  observations  already  made  apply  to  the  ladder  for  the 
scuttle.  The  duty  to  furnish  and  keep  such  a  ladder  was  imposed 
mainly  for  the  benefit  of  the  tenants.  It  was  the  intention  of  the  stat- 
ute that  they  should  have  two  means  of  escape  in  the  case  of  fire, 
one  by  the  scuttle  and  another  by  the  fire-escape.  It  was  the  duty  of 
the  defendant  to  provide  a  ladder,  and  then  to  use  reasonable  care  to 
keep  it  there  in  readiness  for  use.  The  defendant  had  once  provided 
a  ladder  for  this  scuttle,  but  for  many  months  before  this  fire  there 
had  been  none  there.  This  the  plaintiff  and  his  wife  did  not  know. 
They  knew  where  the  scuttle  was,  and  they  had  the  right  to  suppose 
that  there  was  a  ladder  to  reach  it,  as  the  law  requires.  Hence  there 
was,  or  at  least  the  jury  had  the  right  to  find  that  there  was,  a  breach 
of  duty  in  this  respect.  But  the  claim  is  also  made  as  to  this  that 
there  was  not  sufficient  evidence  to  authorize  the  jury  to  find  that  the 
breach  of  this  duty  had  any  connection  with  the  death  of  plaintiff's 
wife ;  that  her  life  would  have  been  saved  if  the  ladder  had  been  there. 
We  think  there  was.  The  evidence  was  not  very  satisfactory.  It  is 
true  that  much  is  left,  from  the  necessity  of  the  case,  to  the  weighing 
of  probabilities.  But  the  jury  could  find  that  the  deceased  knew  where 
the  scuttle  was ;  that  she  had  time  after  notice  of  the  fire  to  reach  it ; 
and  that,  as  she  was  making  efforts  to  escape,  she  probably  tried  to 
escape  in  that  direction,  and  failed  for  want  of  the  ladder.  There 
'vas  sufficient  evidence,  therefore,  to  authorize  a  verdict  for  the  plain- 
tiff, and  we  do  not  think  the  judgment  should  be  reversed  for  other 
errors  alleged.  ^ 

The  judgment  must  be  affirmed,  with  costs.     All  concur. 

Judgment  affirmed. 

(Statutes,  which,  as  in  the  above  case,  prescribe  or  prohibit  certain  acts,  and 
declare  a  penalty  for  their  violation,  may  be  so  drawn  as  to  create,  expressly 
or  impliedly,  a  duty  towards  the  public  only,  and  not  towards  individuals. 
In  such  cases  the  penalty  can  be  enforced  for  the  public  wrong,  but  if  an  in- 
dividual also  suffers  damage  from  the  violation  of  the  statute,  he  cannot  main- 
tain an  action  against  the  wrongdoer  to  obtain  redress  therefor.  Heeney  v. 
Sprague,  11  R.  I.  456,  23  Am.  Rep.  502;  City  of  Rochester  v.  Campbell,  123 
N.  Y.  405,  25  N.  E.  937,  10  L.  R.  A.  393,  20  Am.  St.  Rep.  760 ;  Flynn  v.  Canton 
Co.,  40  Md.  312,  17  Am.  Rep.  603 ;  Atkinson  v.  Newcastle  Waterworks  Co.,  L. 
R.  2  Ex.  D.  441 ;  cf.  Borough  of  Bathurst  v.  Macpherson,  L.  R.  4  App.  Cas. 
256,  268 ;  Pickering  v.  James,  L.  R.  8  C.  P.  489 ;  Grant  v.  Slater  Mill  Co.,  14 
R.  I.  380.  But  when,  as  in  Willy  v.  Mulledy,  ante  28,  the  statutory  obligation 
is  construed  as  for  the  benefit  of  individuals,  as  well  as  of  the  public,  the  ap- 
propriate private  remedy,  as,  e.  g.,  an  action  for  damages,  is  maintainable  by 
the  person  injured.  Baxter  v.  Doe,  148  Mass.  558,  8  N.  E.  415;  Parker  v. 
Barnard,  135  Mass.  116,  46  Am.  Rep.  450;  Taylor  v.  Lake  Shore  R.  Co.,  45 
Mich.  74,  7  N.  W.  728,  40  Am.  Rep.  457;  Hayes  v.  Mich.  Cent.  R.  Co.,  Ill 
U.  S.  239,  240,  4  Sup.  Ct  369,  28  L.  Ed.  410 ;  Bott  v.  Pratt,  33  Minn.  323,  23 
N.  W.  237,  53  Am.  Rep.  47 ;  cf.  Donnegan  v.  Erhardt,  119  N.  Y.  4G8,  23  N.  E. 
1051,  7  L.  R.  A.  527;  Atchison,  etc.,  R.  Co.  v.  Reesman,  60  Fed.  370,  9  C.  Q 
A.  20,  23  L.  R.  A;  768 ;  Smith  v.  Tripp,  13  R.  I.  152.) 


GENERAL  PRINCIPLES.  33 

(46  Me.  95.) 
STEARNS  et  al.  v.  ATLANTIC  &  ST.  L.  R.  CO.  (In  part). 

(Supreme  Judicial  Court  of  Maine.     1858.) 

STATUTE  CREATING  A  LEGAL  RIGHT,  BTJT  PAH-ING  TO  PBOVIDK  A  REMEDY  OB 
FORM  OF  ACTION  FOB  ITS  VIOLATION. 

Pub.  Laws  1842,  c.  9,  §  5,  providing  that  a  railroad  corporation  shall  be 
held  responsible  to  the  owner  of  property  that  has  been  injured  by  fire 
communicated  by  a  locomotive  engine  of  the  corporation,  will  not  be  held 
to  be  unavailing  to  the  person  whose  property  has  been  thus  injured  be- 
cause neither  that  nor  any  other  statute  provides  a  remedy  or  prescribes 
a  form  of  action.  When  a  statute  gives  a  right,  or  forbids  the  doing  of 
an  injury  to  another,  and  no  action  is  given  therefor  in  express  terms, 
still  the  party  shall  have  an  action  therefor. 

Exceptions  from  the  ruling  of  HATHAWAY,  J. 

This  was  an  action  to  recover  for  the  destruction  of  plaintiffs'  build- 
ing and  other  property  by  fire  alleged  to  have  been  caused  by  a  loco- 
motive engine  of  defendants. 

This  action  was  brought  under  the  fifth  section  of  chapter  9  of  the 
Public  Laws  of  1842,  which  provides  that,  "when  any  injury  is  done 
to  a  building  or  other  property  of  any  person  or  corporation,  by  fire 
communicated  by  a  locomotive  engine  of  any  railroad  corporation, 
the  said  corporation  shall  be  held  responsible  in  damages  to  the  per- 
son or  corporation  so  injured ;  and  any  railroad  corporation  shall 
have  an  insurable  interest  in  the  property  for  which  it  may  be  held 
responsible  in  damages,  along  its  route,  and  may  procure  insurance  in 
its  own  behalf." 

The  verdict  was  for  the  plaintiffs. 

MAY,  J.  The  first  objection  is  that  this  action  cannot  be  main- 
tained because  no  remedy  is  given  by  the  statute  creating  the  liabil- 
ity, nor  by  any  other  statute,  nor  by  the  common  law.  That  the 
statute,  upon  which  the  plaintiffs  base  their  right  to  recover,  gives 
to  them  a  right  to  compensation  for  the  injury  they  have  sustained 
is  not  denied  (Pub.  Laws  1842,  c.  9,  §  5) ;  but  it  is  insisted  that  the 
creation  of  such  a  right  is  wholly  unavailing  to  the  party  injured,  un- 
less the  same  statute,  or  some  other,  also  provide  some  form  of  reme- 
dy. But  such  is  not  the  law.  Some  form  of  action  may  always  be 
maintained  for  a  violation  of  a  common-law  right,  and  it  is  often 
said  to  be  the  pride  of  the  common  law  that  it  furnishes  a  remedy  for 
every  wrong.  In  the  absence  of  any  authority  to  the  contrary,  it  is 
not  perceived  why  a  legal  right  to  compensation  for  actual  damages 
sustained,  even  though  such  right  depend  wholly  upon  a  statute,  is 
not  as  worthy  of  protection  in  a  court  of  law  as  any  common-law 
right.  The  common  law  is  said  to  be,  in  fact,  nothing  but  the  expres- 
sion of  ancient  statutes;  but,  whether  this  be  so  or  not,  the  injury  for 
a  violation  of  a  statute  right  is  as  real  as  are  injuries  which  exist  only 
by  the  common  law.- 
CHASE  (2o  ED.) — 3 


34  LAW  OF  TORTS. 

If  a  man  has  a  right,  he  must,  as  has  been  observed  in  a  celebrated 
case,  have  a  means  to  vindicate  and  maintain  it,  and  a  remedy,  if  he 
is  injured  in  the  exercise  and  enjoyment  of  it;  and,  indeed,  it  is  a 
vain  thing  to  imagine  a  right  without  a  remedy,  for  want  of  right 
and  want  of  remedy  are  reciprocal.  Ashby  v.  White,  2  Lord  Raym. 
953  J  Westmore  v.  Greenbank,  Willes,  577,  cited  in  Broom's  Maxims, 
147.  To  deny  the  remedy  is,  therefore,  in  substance,  to  deny  the 
right ;  and  it  makes  no  difference  whether  the  right  exists  at  common 
law  or  by  statute.  Hence  the  familiar  maxim  quoted  by  the  counsel 
in  defense,  that  "wherever  the  statute  gives  a  right  the  party  shall,  by 
consequence,  have  an  action  to  recover  it."  The  authorities  cited  in 
defense  will  be  found  to  be  in  harmony  with  this  maxim.  The  rule 
is  now  understood  to  be  well  settled  that  when  a  statute  gives  a  right 
or  forbids  the  doing  of  an  injury  to  another,  and  no  action  be  given 
therefor  in  express  terms,  still  the  party  shall  have  an  action  therefor. 
Broom's  Maxims,  149,  150,  and  cases  there  cited.  The  cases  cited 
for  the  plaintiffs  not  only  sustain  the  same  position,  but  also  show 
that  where  no  other  remedy  is  provided  the  proper  remedy  is  a  special 
action  on  the  case. 

It  is  said,  however,  that  in  all  these  cases  the  fact  that  a  wrong  had 
been  done  is  recognized  by  the  court,  while  in  the  case  at  bar  the  de- 
fendants are  without  fault.  This  may  be  true,  if  the  defendants  or 
their  lessees  are  required  in  the  running  of  their  engines  to  exercise 
only  that  degree  of  care  which  is  required  by  the  common  law.  But 
something  more  than  ordinary  care,  at  least  by  a  strong  implication, 
is  made  necessary  by  the  statute  on  which  this  action  is  founded.  In 
the  rightful  exercise  of  its  powers  the  Legislature  has  determined  that 
if  the  locomotive  engines  of  any  railroad  corporation  are  driven  by 
them  or  their  agents  in  such  a  manner,  or  under  such  circumstances, 
that  fire  shall  be  communicated  thereby  to  the  property  of  any  person 
or  corporation  along  its  route,  such  railroad  corporation  shall  be  held 
responsible  in  damages  to  the  person  or  corporation  injured.  The 
degree  of  care,  therefore,  which  is  required  to  protect  such  railroad 
corporation  against  liability  for  damages  occasioned  by  fire  so  com- 
municated is  such  as  will  prevent  all  such  injury.  If  they  exercise 
such  care  they  are  safe ;  otherwise  they  are  not.  We  cannot  say,  con- 
sidering the  dangerous  nature  of  this  element,  and  the  vast  amount 
of  property  along  our  railroad  routes  which  is  exposed  to  its  devour- 
ing flames,  that  such  a  rule  is  not  required  for  the  public  good,  or 
that  when  a  less  degree  is  exercised,  even  though  it  be  all  which  ordi- 
nary prudence  might  require,  the  corporation  is  without  legal  fault 
There  is  at  least  a  statute  wrong.  The  foundation,  therefore,  for  the 
alleged  distinction  between  this  case  and  those  referred  to  in  the  cases 
cited  does  not  exist,  and  the  exception  to  the  ruling  of  the  presiding 
judge  on  this  point  is  not  sustained. 

Exceptions  overruled,  and  judgment  on  the  verdict 

(The  rule  laid  down  in  the  above  case  has  been  otherwise  expressed  as  fol- 
lows :  "When  a  statute  gives  a  right,  then,  although  in  express  terms  it  has 


GENERAL  PRINCIPLES.  35 

not  given  a  remedy,  the  remedy  which  by  law  is  properly  applicable  to  that 
right  follows  as  an  incident"  Braithwaite  v.  Skinner,  5  M.  &  W.  327.  Ameri- 
can cases  in  support  of  this  rule  are  Rackliff  v.  Qreenbush,  98  Me.  104,  44  Atl. 
375 ;  Brown  v.  City  of  Lowell,  8  Mete.,  at  page  177  ;  Tapley  v.  Forbes,  2  Allen, 
at  page  24 ;  Healey  v.  New  Haven,  49  Conn.  394 ;  Clark  v.  Brown,  18  Wend., 
at  page  220 ;  Dudley  v.  Mayhew,  3  N.  Y.  9 ;  Commrs.  v.  Duckett,  20  Md.  468 ; 
McCarthy  v.  St.  Paul,  22  Minn.  527 ;  Dore  v.  Milwaukee,  42  Wis.  108 ;  Reock 
v.  Mayor  of  Newark,  33  N.  J.  Law,  129 ;  Householder  v.  Kansas  City,  83  Mo. 
468.) 


(5  Johns.  175.) 
ALMT  v.  HARRIS. 
(Supreme  Court  of  New  York.    1809.) 

1.  FEBEIES— INFRINGEMENT  OF  RIGHTS— ACTION— PENALTIES. 

A  person  having  a  right  of  ferry,  granted  under  the  act  to  regulate 
ferries  within  this  state,  cannot  maintain  an  action  on  the  case  for  the 
disturbance  of  his  right.  His  only  remedy  is  for  the  penalty  given  by  the 
statute. 

2.  STATUTES— COMMON  LAW — ACTION. 

If  a  statute  gives  a  remedy  in  the  affirmative,  without  a  negative  ex- 
press or  implied,  for  a  matter  which  was  actionable  at  the  common  law, 
the  party  may  sue  at  the  common  law  as  well  as  upon  the  statute. 

On  Certiorari  from  a  Justice's  Court. 

Harris  sued  Almy  in  the  court  below,  in  an  action  on  the  case,  for 
disturbing  him  in  the  enjoyment  of  a  ferry  across  the  Cayuga  Lake, 
at  the  village  of  Cayuga,  granted  to  Harris,  by  the  courts  of  common 
pleas,  for  the  counties  of  Cayuga  and  Seneca.  A  judgment  for  dam- 
ages was  given  in  favor  of  Harris,  on  which  the  certiorari  was  brought 
to  this  court.  Several  errors  were  assigned,  but  it  will  be  sufficient 
to  state  the  opinion  of  the  court. 

PER  CURIAM.  There  is  one  error  which  we  consider  fatal,  and 
for  that  we  think  there  must  be  a  judgment  of  reversal.  The  act  to 
regulate  ferries  within  this  state  (20  Sess.  c.  64,  §  i)  prohibits  any 
person,  except  within  the  southern  district,  the  counties  of  Orange 
and  Clinton,  from  keeping  or  using  a  ferry  for  transporting  across  any 
river,  stream,  or  lake,  any  person  or  persons,  or  any  goods  or  mer- 
chandise, for  profit  or  hire,  unless  licensed  in  the  manner  directed  by 
that  act,  under  a  penalty  of  $5. 

If  Harris  had  possessed  a  right  at  the  common  law  to  the  exclusive 
enjoyment  of  this  ferry,  then,  the  statute  giving  a  remedy  in  the  af- 
firmative, without  a  negative  expressed  or  implied,  for  a  matter  au- 
thorized by  the  common  law,  he  might,  notwithstanding  the  statute, 
have  his  remedy  by  action  at  the  common  law.  I  Com.  Dig.  Action 
on  Statute,  (C).  But  Harris  had  no  exclusive  right  at  the  common 
law,  nor  any  right  but  what  he  derived  from  the  statute.  Conse- 
quently he  can  have  no  right,  since  the  statute,  but  those  it  gives; 


gg  LAW  OF  TORTS. 

and  his  remedy,  therefore,  must  be  under  the  statute,  and  the  penaltj 
only  can  be  recovered. 

Judgment  reversed. 

(These  rules  are  well  settled.  Thus  (1)  the  rule  that  "If  a  statute  creates 
a  rig-lit  which  did  not  exist  before,  and  prescribes  a  remedy  for  the  violation 
of  it,  this  remedy  only  can  be  pursued,"  is  supported  by  Stafford  v.  Ingersol, 
3  Hill,  38 ;  People  v.  Bd.  of  Canvassers,  150  N.  Y.,  at  page  59,  50  N.  E.  432,  and 
cases  cited ;  Coffin  v.  Field,  7  Cush.  355,  358 ;  Henniker  v.  Contoocook  R.  R., 
29  N  H.  146 ;  Lease  v.  Vance,  28  Iowa,  509 ;  Bassett  v.  Carleton,  32  Me.  553, 
54  Am.  Dec.  605 ;  City  of  Cainden  v.  Allen,  26  N.  J.  Law,  398,  403 ;  cf.  Fletcher 
v.  State  Capital  Bank,  37  N.  H.  369,  391 ;  Learock  v.  Putnam,  111  Mass.  499. 
And  (2)  the  rule  that  "where  there  was  a  remedy  at  common  law,  and  a  stat- 
ute gives  a  new  remedy,  without  a  negative  express  or  implied,  the  old  remedy 
Is  not  taken  away,  but  a  party  injured  may  elect  between  the  two,"  is  sup- 
ported by  Tremain  v.  Richardson,  68  N.  Y.  617 ;  People  v.  N.  Y.  Cent  R.  Co., 
74  N.  Y.  302 ;  Gooch  v.  Stephenson,  13  Me.  371 ;  Barden  v.  Crocker,  10  Pick. 
383,  389 ;  Adams  v.  Richardson,  43  N.  H.  212 ;  King  v.  Pomeroy,  121  Fed.  287, 
292;  Bellant  v.  Brown,  78  Mich.  294,  44  N.  W.  326.) 


Injuria  sine  damno  gives  a  right  of  action. 

(3  Sumn.  189,  Fed.  Cas.  No.  17,322.) 
WEBB  v.  PORTLAND  MANUF'G  CO.  (in  part). 
(U.  S.  Circuit  Court,  D.  Maine.    May  Term,  1838.) 

1.  VIOLATION  OF  RIGHT  WITHOUT  ACTUAL  DAMAGE. 

To  sustain  an  action,  where  there  is  a  clear  violation  of  a  legal  right,  It 
is  not  necessary  to  show  actual  damage ;  every  such  violation  imports 
damage  ;  and  plaintiff  is  entitled  to  nominal  damages,  if  no  other  be  proved. 
A  fortiori  this  doctrine  applies  when  the  act  done  is  such  that,  by  its 
repetition  or  continuance,  it  may  become  the  foundation  or  evidence  of 
an  adverse  right;  and,  in  such  a  case,  a  court  of  equity  will  interpose 
by  injunction  to  restrain  such  injurious  act,  when  the  remedy  at  law  is 
inadequate  to  prevent  and  redress  the  mischief. 

V5.  DIVERSION  OF  WATER-COURSE— INJUNCTION. 

Plaintiff  and  defendants  severally  owned  different  mills  and  mill  priv- 
ileges at  the  same  mill-dam.  Defendants  drew  water  for  the  supply  of 
one  of  their  mills  from  the  head  of  the  mill-pond,  and  afterwards  returned 
the  water  into  the  stream  below  the  dam.  The  water  so  withdrawn  was 
much  less  than  the  amount  to  which  defendants  were  entitled  at  the  dam. 
Held,  that  plaintiff  was  entitled,  not  merely  to  his  proportion  of  the  water 
in  the  pond,  but  to  his  proportion  of  the  whole  stream  at  the  dam,  undi- 
vided and  undiminished  in  its  natural  flow,  and  defendants  should  be  re- 
strained by  injunction  from  the  diversion,  at  the  mill  pond,  of  even  a 
part  thereof  less  than  their  proportion ;  and  that  it  was  no  answer  to 
plaintiff's  bill  therefor  that  defendants  had  improved  the  supply  of  water 
to  the  pond  by  a  reservoir  higher  up  the  stream. 

In  Equity.     On  bill  for  injunction. 

Bill  in  equity  by  Joshua  Webb  against  the  Portland  Manufacturing 
Company  to  restrain  the  diversion  of  water  from  plaintiff's  mill.     On 


GENERAL   PRINCIPLES.  37 

the  stream  on  which  the  mill  was  situated  were  two  dams,  the  dis- 
tance between  which  was  about  40  or  50  rods,  occupied  by  the  mill- 
pond  of  the  lower  dam.  Plaintiff  owned  certain  mills  and  mill  privi- 
leges on  the  lower  dam.  Defendants  also  owned  certanv  other  mills 
and  mill  privileges  on  the  same  dam.  To  supply  water  to  one  of  such 
mills,  defendants  made  a  canal  from  the  pond  at  a  point  immediately 
below  the  upper  dam.  The  water  thus  withdrawn  by  them  for  that 
purpose  was  about  one-fourth  of  the  water  to  which  defendants  were 
entitled  as  mill-owners  on  the  lower  dam,  and  was  returned  into  the 
stream  immediately  below  that  dam. 

STORY,  J.  The  question  which  has  been  argued  upon  the  sug- 
gestion of  the  court  is  of  vital  importance  in  the  cause,  and,  if  decided 
in  favor  of  the  plaintiff,  it  supersedes  many  of  the  inquiries  to  which 
our  attention  must  otherwise  be  directed,  It  is  on  this  account  that 
we  thought  it  proper  to  be  argued  separately  from  the  general  merits 
}f  the  cause. 

The  argument  for  the  defendants,  then,  presents  two  distinct  ques- 
tions. The  first  is  whether,  to  maintain  the  present  suit,  it  is  essen- 
cial  for  the  plaintiff  to  establish  any  actual  damage.  The  second  is 
whether,  in  point  of  law,  a  mill-owner,  having  a  right  to  a  certain  por- 
tion of  the  water  of  a  stream  for  the  use  of  his  mill  at  a  particular 
dam,  has  a  right  to  draw  off  the  same  portion  or  any  less  quantity  of 
the  water,  at  a  considerable  distance  above  the  dam,  without  the  con- 
sent of  the  owners  of  other  mills  on  the  same  dam.  In  connection 
with  these  questions,  the  point  will  also  incidentally  arise  whether  it 
makes  any  difference  that  such  drawing  off  of  the  water  above  can 
be  shown  to  be  no  sensible  injury  to  the  other  mill-owners  on  the 
lower  dam. 

As  to  the  first  question,  I  can  very  well  understand  that  no  action 
lies  in  a  case  where  there  is  damnum  absque  injuria;  that  is,  where 
there  is  a  damage  done  without  any  wrong  or  violation  of  any  right 
of  the  plaintiff.  But  I  am  not  able  to  understand  how  it  can  correctly 
be  said,  in  a  legal  sense,  that  an  action  will  not  lie,  even  in  case  of  a 
wrong  or  violation  of  a  right,  unless  it  is  followed  by  some  percepti- 
blt  damage,  which  can  be  established  as  a  matter  of  fact ;  in  other 
words,  that  injuria  sine  damno  is  not  actionable.  See  Mayor  of  Lynn, 
etc.,  v.  Mayor  of  London,  4  Term  R.  130,  141,  143,  144;  Com.  Dig. 
"Action  on  the  Case,"  B  i,  2.  On  the  contrary',  from  my  earliest  read- 
ing, I  have  considered  it  laid  up  among  the  very  elements  of  the  com- 
mon law  that  wherever  there  is  a  wrong  there  is  a  remedy  to  redress 
it;  and  that  every  injury  imports  damage  in  the  nature  of  it;  and,  if 
no  other  damage  is  established,  the  party  injured  is  entitled  to  a  ver- 
dict for  nominal  damages.  A  fortiori  this  doctrine  applies  where  there 
is  not  only  a  violation  of  a  right  of  the  plaintiff,  but  the  act  of  the  de- 
fendant, if  continued,  may  become  the  foundation,  by  lapse  of  time,  of 
an  adverse  right  in  the  defendant ;  for  then  it  assumes  the  character, 
not  merely  of  a  violation  of  a  right  tending  to  diminish  its  value,  but 


38  LAW   OF   TORTS. 

it  goes  to  the  absolute  destruction  and  extinguishment  of  it.  Under 
such  circumstances,  unless  the  party  injured  can  protect  his  right  from 
such  a  violation  by  an  action,  it  is  plain  that  it  may  be  lost  or  destroyed, 
without  any  possible  remedial  redress.  In  my  judgment,  the  common 
law  countenances  no  such  inconsistency,  not  to  call  it  by  a  stronger 
name.  Actual,  perceptible  damage  is  not  indispensable  as  the  founda- 
tion of  an  action.  The  law  tolerates  no  further  inquiry  than  whether 
there  has  been  the  violation  of  a  right.  If  so,  the  party  injured  is 
entitled  to  maintain  his  action  for  nominal  damages,  in  vindication  of 
his  right,  if  no  other  damages  are  fit  and  proper  to  remunerate  him. 
So  long  ago  as  the  great  case  of  Ashby  v.  White,  2  Ld.  Raym.  938,  6 
Mod.  45,  Holt,  524,  the  objection  was  put  forth  by  some  of  the  judges, 
and  was  answered  by  Lord  Holt,  with  his  usual  ability  and  clear  learn- 
ing; and  his  judgment  was  supported  by  the  house  of  lords,  and  that 
of  his  brethren  overturned.  By  the  favor  of  an  eminent  judge,  Lord 
Holt's  opinion,  apparently  copied  from  his  own  manuscript,  has  been 
recently  printed.  In  this  last  printed  opinion  (page  14)  Lord  Holt 
says :  "It  is  impossible  to  imagine  any  such  thing  as  injuria  sine  dam- 
no.  Every  injury  imports  damage  in  the  nature  of  it."  S.  P.  2  Ld. 
Raym.  R.  955.  And  he  cites  many  cases  in  support  of  his  position. 
Among  these  is  Starling  v.  Turner,  2  Lev.  50,  2  Vent.  25,  where  the 
plaintiff  was  a  candidate  for  the  office  of  bridge-master  of  London 
bridge,  and  the  lord  mayor  refused  his  demand  of  a  poll,  and  it  was 
determined  that  the  action  was  maintainable  for  the  refusal  of  the 
poll.  Although  it  might  have  been  that  the  plaintiff  would  not  have 
been  elected,  the  action  was  nevertheless  maintainable ;  for  the  re- 
fusal was  a  violation  of  the  plaintiff's  right  to  be  a  candidate.  So, 
in  Hunt  v.  Dowman,  Cro.  Jac.  478,  2  Rolle,  21,  where  the  lessor 
brought  an  action  against  the  lessee  for  disturbing  him  from  entering 
into  the  house  leased,  in  order  to  view  it,  and  to  see  whether  any  waste 
\vas  committed;  and  it  was  held  that  the  action  well  lay,  though  no 
waste  was  committed  and  no  actual  damage  done,  for  the  lessor  had  a 
right  so  to  enter,  and  the  hindering  of  him  was  an  injury  to  that  right, 
for  which  he  might  maintain  an  action.  So  Herring  v.  Finch,  2  Lev. 
250,  where  it  was  held  that  a  person  entitled  to  vote,  who  was  refused 
his  vote  at  an  election,  might  well  maintain  an  action  therefor,  al- 
though the  candidate,  for  whom  he  might  have  voted,  might  not  have 
been  chosen,  and  the  voter  could  not  sustain  any  perceptible  or  actual 
damage  by  such  refusal  of  his  vote.  The  law  gives  the  remedy  in 
such  case,  for  there  is  a  clear  violation  of  the  right.  And  this  doc- 
trine, as  to  a  violation  of  the  right  to  vote,  is  now  incontrovertibly 
established;  and  yet  it  would  be  impracticable  to  show  any  temporal 
or  actual  damage  thereby.  See  Harman  v.  Tappenden,  i  East,  555 ; 
Drewe  v.  Coulton,  Id.  563,  note ;  Kilham  v.  Ward,  2  Mass.  236 ;  Lin- 
coln v.  Hapgood,  ii  Mass.  350;  2  Vin.  Abr.  "Action,  Case,"  note  c, 
pi.  3.  In  the  case  of  Ashby  v.  White,  as  reported  by  Lord  Raymond, 
(2  Ld.  Raym.  953,)  Lord  Holt  said :  "If  the  plaintiff  has  a  right,  he 
must  of  necessity  have  a  means  to  vindicate  and  maintain  it,  and  a 


GENERAL   PRINCIPLES.  39 

remedy,  if  he  is  injured  in  the  exercise  or  enjoyment  of  it;  and,  in- 
deed, it  is  a  vain  thing  to  imagine  a  right  without  a  remedy ;  for  want 
of  right  and  want  of  remedy  are  reciprocal."  S.  P.  6  Mod.  53. 

The  principles  laid  down  by  Lord  Holt  are  so  strongly  commended, 
not  only  by  authority,  but  by  the  common  sense  and  common  justice 
of  mankind,  that  they  seem  absolutely,  in  a  judicial  view,  incontro- 
vertible. And  they  have  been  fully  recognized  in  many  other  cases. 
The  note  of  Mr.  Sergeant  Williams  to  Mellor  v.  Spateman,  I  Saund. 
3463,  note  2;  Wells  v.  Watling,  2  W.  Bl.  1233;  and  the  case  of  the 
Tunbridge  Dippers,  (Weller  v.  Baker,)  2  Wils.  414, — are  direct  to  the 
purpose.  I  am  aware  that  some  of  the  old  cases  inculcate  a  different 
doctrine,  and  perhaps  are  not  reconcilable  with  that  of  Lord  Holt. 
There  are  also  some  modern  cases  which  at  first  view  seem  to  the  con- 
trary. But  they  are  distinguishable  from  that  now  in  judgment. 

On  the  other  hand,  Marzetti  v.  Williams,  i  Barn.  &  Adol.  415,  goes 
the  whole  length  of  Lord  Holt's  doctrine;  for  there  the  plaintiff  re- 
covered, notwithstanding  no  actual  damage  was  proved  at  the  trial; 
and  Mr.  Justice  Taunton  on  that  occasion  cited  many  authorities  to 
show  that  where  a  wrong  is  done,  by  which  the  right  of  the  party  may 
be  injured,  it  is  a  good  cause  of  action,  although  no  actual  damage  be 
sustained. 

The  case  of  Bower  v.  Hill,  i  Bing.  N.  C.  549,  fully  sustains  the  doc- 
trine for  which  I  contend ;  and,  indeed,  a  stronger  case  of  its  applica- 
tion cannot  well  be  imagined.  There  the  court  held  that  a  permanent 
obstruction  to  a  navigable  drain  of  the  plaintiff's,  though  choked  up 
with  mud  for  16  years,  was  actionable,  although  the  plaintiff  received 
no  immediate  damage  thereby;  for,  if  acquiesced  in  for  20  years,  it 
would  become  evidence  of  a  renunciation  and  abandonment  of  the 
right  of  way.  The  case  of  Blanchard  v.  Baker,  8  Greenl.  253,  268,  23 
Am.  Dec.  504,  recognizes  the  same  doctrine  in  the  most  full  and  satis- 
factory manner,  and  is  directly  in  point;  for  it  was  a  case  for  divert- 
ing water  from  the  plaintiff's  mill. 

Upon  the  whole,  without  going  further  into  an  examination  of  the 
authorities  on  this  subject,  my  judgment  is  that,  whenever  there  is  a 
clear  violation  of  a  right,  it  is  not  necessary  in  an  action  of  this  sort  to 
show  actual  damage ;  that  every  violation  imports  damage ;  and,  if  no 
other  be  proved,  the  plaintiff  is  entitled  to  a  verdict  for  nominal  dam- 
ages; and  a  fortiori  that  this  doctrine  applies  whenever  the  act  done 
is  of  such  a  nature  as  that  by  its  repetition  or  continuance  it  may  be- 
come the  foundation  or  evidence  of  an  adverse  right.  See,  also,  Ma- 
son v.  Hill,  3  Barn.  &  Adol.  304,  5  Barn.  &  Adol.  i.  But  if  the  doc- 
trine were  otherwise,  and  no  action  were  maintainable  at  law,  without 
proof  of  actual  damage,  that  would  furnish  no  ground  why  a  court  of 
equity  should  not  interfere,  and  protect  such  a  right  from  violation 
and  invasion ;  for,  in  a  great  variety  of  cases,  the  very  ground  of  the 
interposition  of  a  court  of  equity  is  that  the  injury  done  is  irremedia- 
ble at  law,  and  that  the  right  can  only  be  permanently  preserved  or 
perpetuated  by  the  powers  of  a  court  of  equity.  And  one  of  the  most 


40  LAW   OF   TORTS. 

ordinary  processes  to  accomplish  this  end  is  by  a  writ  of  injunction, 
the  nature  and  efficacy  of  which  for  such  purpose  I  need  not  state, 
as  the  elementary  treatises  fully  expound  them.  See  Eden,  Inj.;  2 
Story,  Eq.  Jur.  c.  23,  §§  86-959;  Bolivar  Manuf'g  Co.  v.  Neponset 
Manuf'g  Co.,  16  Pick.  241.  If,  then,  the  diversion  of  water  com- 
plained of  in  the  present  case  is  a  violation  of  the  right  of  the  plain- 
tiff, and  may  permanently  injure  that  right,  and  become,  by  lapse  of 
time,  the  foundation  of  an  adverse  right  in  the  defendants,  I  know  of 
no  more  fit  case  for  the  interposition  of  a  court  of  equity,  by  way  of 
injunction,  to  restrain  the  defendants  from  such  an  injurious  act.  If 
there  be  a  remedy  for  the  plaintiff  at  law  for  damages,  still  that  rem- 
edy is  inadequate  to  prevent  and  redress  the  mischief.  If  there  be  no 
such  remedy  at  law,  then,  a  fortiori,  a  court  of  equity  ought  to  give 
its  aid  to  vindicate  and  perpetuate  the  right  of  the  plaintiff.  A  court 
of  equity  will  not,  indeed,  entertain  a  bill  for  an  injunction  in  case  of 
a  mere  trespass  fully  remediable  at  law.  But,  if  it  might  occasion 
irreparable  mischief  or  permanent  injury,  or  destroy  a  right,  that  is 
the  appropriate  case  for  such  a  bill.  See  2  Story,  Eq.  Jur.  §§  926- 
928,  and  the  cases  there  cited;  Jerome  v.  Ross,  7  John.  Ch.  315,  n 
Am.  Dec.  484;  Van  Bergen  v.  Van  Bergen,  3  John.  Ch.  282,  8  Am. 
Dec.  511 ;  Turnpike  Road  v.  Miller,  5  John.  Ch.  101,  9  Am.  Dec.  274; 
Gardner  v.  Village  of  Newburgh,  2  John.  Ch.  162,  7  Am.  Dec.  526. 

Let  us  come,  then,  to  the  only  remaining  question  in  the  cause,  and 
that  is  whether  any  right  of  the  plaintiff,  as  mill-owner  on  the  lower 
dam,  is  or  will  be  violated  by  the  diversion  of  the  water  by  the  canal 
of  the  defendants.  And  here  it  does  not  seem  to  me  that,  upon  the 
present  state  of  the  law,  there  is  any  real  ground  for  controversy,  al- 
though there  were  formerly  many  vexed  questions,  and  much  con- 
trariety of  opinion.  The  true  doctrine  is  laid  down  in  Wright  v. 
Howard,  I  Sim.  &  S.  190,  by  Sir  John  Leach,  in  regard  to  riparian 
proprietors,  and  his  opinion  has  since  been  deliberately  adopted  by  the 
king's  bench.  Mason  v.  Hill,  3  Barn.  &  Adol.  304,  5  Barn.  &  Adol.  I. 
See,  also,  Bealey  v.  Shaw,  6  East,  208.  "Prima  facie,"  says  that 
learned  judge,  "the  proprietor  of  each  bank  of  a  stream  is  the  proprie- 
tor of  half  the  land  covered  by  the  stream ;  but  there  is  no  property  in 
the  water.  Every  proprietor  has  an  equal  right  to  use  the  water  which 
flows  in  the  stream;  and  consequently  no  proprietor  can  have  the 
right  to  use  the  water  to  the  prejudice  of  any  other  proprietor,  without 
the  consent  of  the  other  proprietors  who  may  be  affected  by  his  opera- 
tions. No  proprietor  can  either  diminish  the  quantity  of  water  which 
would  otherwise  descend  to  the  proprietors  below,  nor  throw  the  water 
back  upon  the  proprietors  above.  Every  proprietor,  who  claims  a 
right  either  to  throw  the  water  back  above  or  to  diminish  the  quantity 
of  water  wh\ch  is  to  descend  below,  must,  in  order  to  maintain  his 
claim,  either  prove  an  actual  grant  or  license  from  the  proprietors  af- 
fected by  his  operations,  or  must  prove  an  uninterrupted  enjoyment  of 
twenty  years,  which  term  of  twenty  years  is  now  adopted  upon  a 
principle  of  general  convenience,  as  affording  conclusive  presump- 


GENERAL  PRINCIPLES.  41 

tion  of  a  grant."  Mr.  Chancellor  Kent  has  also  summed  up  the  same 
doctrine,  with  his  usual  accuracy,  in  the  brief  but  pregnant  text  of 
his  Commentaries  (3  Kent,  Comm.,  3d  Ed.,  Lect.  42,  p.  439);  and  I 
scarcely  know  where  else  it  can  be  found  reduced  to  so  elegant  and 
satisfactory  a  formulary.  In  the  old  books  the  doctrine  is  quaintly, 
though  clearly,  stated ;  for  it  is  said  that  a  water-course  begins  ex  jure 
naturae,  and,  having  taken  a  certain  course  naturally,  it  cannot  be  [law- 
fully] diverted.  Aqua  currit,  et  debet  currere,  ut  currere  solebat. 
Shury  v.  Piggot,  3  Bulst.  339,  Poph.  166. 

The  same  principle  applies  to  the  owners  of  mills  on  a  stream. 
They  have  an  undoubted  right  to  the  flow  of  the  water  as  it  has  been 
accustomed  of  right  and  naturally  to  flow  to  their  respective  mills. 
The  proprietor  above  has  no  right  to  divert  or  unreasonably  to  retard 
this  natural  flow  to  the  mills  below ;  and  no  proprietor  below  has  a 
right  to  retard  or  turn  it  back  upon  the  mills  above  to  the  prejudice  of 
the  right  of  the  proprietors  thereof.  This  is  clearly  established  by  the 
authorities  already  cited :  the  only  distinction  between  them  being  that 
the  right  of  a  riparian  proprietor  arises  by  mere  operation  of  law  as 
ar  incident  to  his  Ownership  of  the  bank,  and  that  of  a  mill-owner  as 
an  incident  to  his  mill.  Bealey  v.  Shaw,  6  East,  208;  Saunders  v. 
Newman,  I  Ban.  &  Aid.  258 ;  Mason  v.  Hill,  3  Barn.  &  Adol.  304,  5 
Barn  &  Adol.  I  Blanchard  v.  Baker,  8  Greenl.  253,  268,  23  Am.  Dec. 
504:  and  Tyler  v.  Wilkinson,  4  Mason,  397,  400-405,  Fed.  Cas.  No. 
14,312 — are  fully  in  point.  Mr.  Chancellor  Kent  in  his  Commentaries 
relies  on  the  same  principles  and  fully  supports  them  by  a  large  sur- 
vey of  the  authorities.  3  Kent,  Comm.  (3d  Ed.)  Lect.  52,  pp.  441-445. 

Now,  if  this  be  the  law  on  this  subject,  upon  what  ground  can  the 
defendants  insist  upon  a  diversion  of  the  natural  stream  from  the 
plaintiff's  mills,  as  it  has  been  of  right  accustomed  to  flow  thereto? 
Fir  si;,  it  is  said  that  there  is  no  perceptible  damage  done  to  the  plain- 
tifi".  That  suggestion  has  been  already  in  part  answered.  If  it  were 
true,  it  could  not  authorize  a  diversion,  because  it  impairs  the  right  of 
the  plaintiff  to  the  full,  natural  flow  of  the  stream,  and  may  become 
the  foundation  of  an  adverse  right  in  the  defendants.  In  such  a  case 
actual  damage  is  not  necessary  to  be  established  in  proof.  The  law 
presumes  it.  The  act  imports  damage  to  the  right,  if  damage  be  nec- 
essary. Such  a  case  is  wholly  distinguishable  from  a  mere  fugitive, 
temporary  trespass,  by  diverting  or  withdrawing  the  water  a  short  pe- 
riod without  damage,  and  without  any  pretense  of  right.  In  such  a 
case,  the  wrong,  if  there  be  no  sensible  damage,  and  it  be  transient  in 
its  nature  and  character,  as  it  does  not  touch  the  right,  may  possibly 
(for  I  give  no  opinion  upon  such  a  case)  be  without  redress  at  law; 
and  certainly  it  would  found  no  ground  for  the  interposition  of  a  court 
of  equity  by  way  of  injunction. 

But  I  confess  myself  wholly  unable  to  comprehend  how  it  can  be  as- 
sumed, in  a  case  like  the  present,  that  there  is  not  and  cannot  be  an 
actual  damage  to  the  right  of  the  plaintiff.  What  is  that  right?  It 
is  the  right  of  having  the  water  flow  in  its  natural  current  at  all  times 


.jo  LAW  OF  TORTS. 

of  the  year  to  the  plaintiff's  mills.  Now,  the  value  of  the  mill  privi- 
leges must  essentially  depend,  not  merely  upon  the  velocity  of  the 
stream,  but  upon  the  head  of  water  which  is  permanently  maintained. 
The  necessary  result  of  lowering  the  head  of  water  permanently  would 
seem,  therefore,  to  be  a  direct  diminution  of  the  value  of  the  privileges ; 
and,  if  so,  to  that  extent  it  must  be  an  actual  damage. 

Again,  it  is  said  that  the  defendants  are  mill-owners  on  the  lower 
dam,  and  are  entitled,  as  such,  to  their  proportion  of  the  water  of  the 
stream  in  its  natural  flow.  Certainly  they  are.  But  where  are  they  so 
entitled  to  take  and  use  it  ?  At  the  lower  dam ;  for  there  is  the  place 
where  their  right  attaches,  and  not  at  any  place  higher  up  the  stream. 
Suppose  they  are  entitled  to  use  for  their  own  mills  on  the  lower  dam 
half  the  water  which  descends  to  it,  what  ground  is  there  to  say  that 
they  have  a  right  to  draw  off  that  half  at  the  head  of  the  mill-pond? 
Suppose  the  head  of  water  at  the  lower  dam  in  ordinary  times  is  two 
'feet  high,  is  it  not  obvious  that,  by  withdrawing  at  the  head  of  the 
pond  one-half  of  the  water,  the  water  at  the  dam  must  be  proportion- 
ally lowered?  It  makes  no  difference  that  the  defendants  insist  upon 
drawing  off  only  one-fourth  of  what  they  insist  they  are  entitled  to; 
for,  pro  tanto,  it  will  operate  in  the  same  manner;  and,  if  they  have 
a  right  to  draw  off  to  the  extent  of  one-fourth  of  their  privilege,  they 
have  an  equal  right  to  draw  off  to  the  full  extent  of  it.  The  privilege 
attached  to  the  mills  of  the  plaintiff  is  not  the  privilege  of  using  half, 
or  any  other  proportion  merely,  of  the  water  in  the  stream,  but  of  hav- 
ing the  whole  stream,  undiminished  in  its  natural  flow,  come  to  the 
lower  dam  with  its  full  power,  and  there  to  use  his  full  share  of  the 
water-power.  The  plaintiff  has  a  title,  not  to  a  half  or  other  propor- 
tion of  the  water  in  the  pond,  but  is,  if  one  may  so  say,  entitled  per  my 
et  per  tout  to  his  proportion  of  the  whole  bulk  of  the  stream,  undivided 
and  indivisible,  except  at  the  lower  dam.  This  doctrine,  in  my  judg- 
ment, irresistibly  follows  from  the  general  principles  already  stated; 
and,  what  alone  would  be  decisive,  it  has  the  express  sanction  of  the 
supreme  court  of  Maine  in  the  case  of  Blanchard  v.  Baker,  8  Greenl. 
253,  270,  23  Am.  Dec.  504.  The  court  there  said,  in  reply  to  the  sug- 
gestion that  the  owners  of  the  eastern  shore  had  a  right  to  half  the  wa- 
ter, and  a  right  to  divert  it  to  that  extent:  "It  has  been  seen  that,  if 
they  had  been  owners  of  both  sides,  they  had  no  right  to  divert  the  wa- 
ter without  again  returning  it  to  its  original  channel,  (before  it  passed 
the  lands  of  another  proprietor.)  Besides,  it  was  impossible,  in  the  na- 
ture of  things,  that  they  could  take  it  from  their  side  only.  An  equal 
portion  from  the  plaintiff's  side  must  have  been  mingled  with  all  that 
was  diverted." 

A  suggestion  has  also  been  made  that  the  defendants  have  fully  in- 
demnified the  plaintiff  from  any  injury,  and  in  truth  have  conferred  a 
benefit  on  him,  by  securing  the  water,  by  means  of  a  raised  dam,  higher 
up  the  stream,  at  Sebago  pond,  in  a  reservoir,  so  as  to  be  capable  of 
affording  a  full  supply  in  the  stream  in  the  dryest  seasons.  To  this 
suggestion  several  answers  may  be  given.  In  the  first  place,  the  plain- 


GENERAL  PRINCIPLES.  43 

tiff  is  no  party  to  the  contract  for  raising  the  new  dam,  and  has  no  in- 
terest therein,  and  cannot,  as  a  matter  of  right,  insist  upon  its  being 
kept  up,  or  upon  any  advantage  to  be  derived  therefrom.  In  the  next 
place,  the  plaintiff  is  not  compellable  to  exchange  one  right  for  an- 
other, or  to  part  with  a  present  interest  in  favor  of  the  defendants  at 
the  mere  election  of  the  latter.  Even  a  supposed  benefit  cannot  be 
forced  upon  him  against  his  will;  and,  certainly,  there  is  no  pretense 
to  say  that,  in  point  of  law,  the  defendants  have  any  right  to  substi- 
tute, for  a  present  existing  right  of  the  plaintiff's,  any  other  which 
they  may  deem  to  be  an  equivalent.  The  private  property  of  one  man 
cannot  be  taken  by  another,  simply  because  he  can  substitute  an 
equivalent  benefit. 

Having  made  these  remarks  upon  the  points  raised  in  the  argument, 
the  subject,  at  least  so  far  as  it  is  at  present  open  for  the  considera- 
tion of  the  court,  appears  to  me  to  be  exhausted.  Whether,  consist- 
ently with  this  opinion,  it  is  practicable  for  the  defendants  successfully 
to  establish  any  substantial  defense  to  the  bill,  it  is  for  the  defendants, 
and  not  for  the  court,  to  consider.  I  am  authorized  to  say  that  the 
district  judge  concurs  in  this  opinion. 

Decree  accordingly. 

(To  the  same  effect  are  the  following  cases:  N.  T.  Rubber  Co.  v.  Rothery, 
132  N.  Y.  293,  30  N.  E.  841,  28  Am.  St.  Rep.  575 ;  Amsterdam  Knitting  Co.  v. 
Dean.  102  N.  Y.  278,  56  N.  E.  757;  Parker  v.  Griswold,  17  Conn.  288,  42  Am. 
Dec.  730  [a  valuable  decision] ;  Clark  v.  Railroad  Co.,  145  Pa.  438,  22  Atl.  989, 
27  Am.  St.  Rep.  710 :  Lund  v.  New  Bedford,  121  Mass.  286 ;  Stowell  v.  Lincoln, 
11  Gray,  434 ;  Blodgett  v.  Stone,  60  N.  H.  167 ;  Embrey  v.  Owen,  6  Exch.  353. 
In  Lamed  v.  Wheeler,  140  Mass.  390,  5  N.  E.  290,  54  Am.  Rep.  483,  an  action 
for  damages  was  sustained  against  selectmen  of  a  town  for  erasing  a  voter's 
name  from  the  register  of  voters,  whereby  he  was  deprived  of  his  right  to  vote. 
In  Harrington  v.  McCarthy,  169  Mass.  492.  48  N.  E.  278,  61  Am.  St.  Rep.  298, 
an  action  for  an  injunction  was  held  maintainable  where  the  cornice  of  de- 
fendant's building  projected  18  inches  over  plaintiff's  land,  though  the  plaintiff 
had  not  suffered  any  actual  damage  therefrom  in  the  use  of  Ms  property.) 


(66  Mich.  370,  33  N.  W.  521.) 

FISHER  v.  DOWLING  (in  part). 

(Supreme  Court  of  Michigan.    June  16,  1887.) 

TRESPASS— DAMAGES  RECOVERABLE  THOUGH  ACT  IMPROVES  PROPERTY. 

In  an  action  for  trespass  for  sawing  off  the  top  of  plaintiff's  fence, 
plaintiff  is  entitled  to  recover  the  full  value  of  the  property  destroyed, 
even  though  the  fence  was  improved  by  defendant's  act. 

Error  to  Circuit  Court,  Oakland  County. 

CAMPBELL,  C.  J.  Fisher  sued  Bowling  in  trespass  for  sawing 
off  about  a  foot  of  the  upper  part  of  plaintiff's  fence  between  him  and 
defendant.  No  question  was  made  concerning  plaintiff's  title  to  the 


44  LAW  OF  TORTS. 

property  which  he  occupied,  and  the  real  question  was  whether  this 
fence  was  on  the  plaintiff's  land  as  actually  occupied  by  him.  The 
proof  was  very  positive  on  his  part  that  the  fence  was  entirely  within 
the  land  occupied  by  him  for  a  period  of  many  years.  Defendant  in- 
troduced some  testimony  to  the  contrary.  The  question  of  possession 
was  very  fairly  left  to  the  jury,  who  found  for  the  plaintiff. 

But  it  is  claimed  the  court  erred  in  holding  that  for  such  a  trespass 
there  should  be  at  least  nominal  damages,  which  are  all  that  the 
jury  awarded.  Defendant's  counsel  insist  that,  if  this  cutting-down 
process  improved  the  fence,  there  was  not  even  a  nominal  wrong. 
This  is  a  remarkable  claim,  and  the  verdict  is  a  remarkable  verdict. 
It  was  plaintiff's  right  to  have  a  fence  of  such  height  as  he  adopted, 
and  it  is  not  the  right  of  a  neighbor  to  lower  it.  The  jury  ought 
to  have  rendered  a  verdict  for  the  full  value  of  the  property  destroyed. 

Judgment  affirmed,  with  costs. 

(The  rule  that  the  violation  of  a  legal  right  affords  a  cause  of  action,  even 
if  defendant's  act  has  benefited  the  plaintiff.  Is  also  upheld  by  Murphy  v. 
Fond  du  Lac,  23  Wis.  3G5,  99  Am.  Dec.  181  :  Jones  v.  Hannovan,  55  Mo.  4G2 ; 
Parker  v.  Griswold,  17  Conn.  288,  303,  42  Am.  Dee.  739;  Seneca  Rond  Co.  v. 
Auburn,  etc.,  R.  Co.,  5  Hill,  170,  17G ;  cf.  Jewett  v.  Whitney,  43  Me.  242.) 


Ex  damno  sine  injuria  non  oritur  actio. 

(122  Mass.  199,  23  Am.  Rep.  312.) 

GILMORE  v.  DRISCOLL  (in  part). 

(Supreme  Judicial  Court  of  Massachusetts,  Suffolk.    1876.) 

1.  LATERAL  SUPPORT  OF  SOIL— REMOVAL— LIABILITY. 

One  who  makes  excavations  of  soil,  causing  the  soil  of  a  neighbor's  ad- 
Joining  tract  to  fall,  is  liable,  even  if  there  was  no  negligence  on  his  part, 
for  the  injury  done  to  the  land  in  its  natural  condition.  A  landowner 
has  the  absolute  right  to  have  his  land  remain  in  its  natural  condition, 
unaffected  by  any  act  of  his  neighbor,  and,  if  the  neighbor  digs  upon  or 
improves  his  own  land,  so  as  to  injure  this  right,  may  maintain  an  action 
against  him  without  proof  of  negligence. 

2.  SAME — INJURY  TO  IMPROVEMENTS. 

One  who  makes  excavations  of  soil  is  not  liable,  In  the  absence  of  negli- 
gence on  his  part,  for  injury  thereby  to  artificial  improvements,  as  build- 
ings, fences,  etc.,  on  a  neighbor's  adjoining  tract,  unless  the  neighbor  had 
acquired  a  right  to  the  support  of  such  improvements  by  grant  or  pre- 
scription. It  seems  that  such  a  right  cannot  be  gained  in  this  country 
by  prescription. 

3.  SAME— MEASURE  OF  DAMAGES. 

The  measure  of  damages  for  removal  of  the  lateral  support  of  the  soil 

J  tract  of  land,  thereby  causing  the  soil  to  fall,  is  the  damage  oc- 

ioned  by  loss  of  and  injury  to  the  soil  alone,  not  the  sum  required  to 

restore  the  soil  to  its  former  condition,  or  the  difference  in  the  market 

value  of  the  tract. 


GENERAL  PRINCIPLES.  45 

i.  SAME— OWNERSHIP  OF  ADJOINING  TRACT. 

That  land  in  which  one  makes  excavations  does  not  belong  to  him 
does  not  affect  his  liability  for  injury  resulting  from  the  removal  of  the 
lateral  support  of  the  soil  of  an  adjoining  tract 

Action  by  Anne  Gilmore  against  James  Driscoll.  From  a  judgment 
in  favor  of  plaintiff,  the  defendant  appeals,  on  an  agreed  statement  of 
fact.  Judgment  for  the  plaintiff. 

One  Webb  owned  a  tract  of  land  adjoining  a  tract  owned  by  the 
plaintiff.  The  defendant,  with  the  permission  of  a  licensee  of  Webb, 
made  excavations  in  Webb's  lot  near  the  division  line,  causing  the  soil 
of  plaintiff's  lot  to  fall,  taking  with  it  a  fence  and  shrubbery  located 
thereon.  The  weight  of  structures  on  plaintiff's  land  did  not  contrib- 
ute to  the  falling  away  of  the  soil.  The  damages  occasioned  to  the 
plaintiff  by  loss  of  and  injury  to  her  soil  alone  amount  to  $95.  To 
put  the  soil  in  its  former  condition  would  cost  $575,  and  to  replace  the 
fence  and  shrubs  would  cost  $45.  The  difference  in  the  market  value 
of  the  land  is  equal  to  the  sum  of  the  last  two  amounts,  or  $620. 

GRAY,  C.  J.  The  right  of  an  owner  of  land  to  the  support  of  the 
land  adjoining  is  jure  naturae,  like  the  right  in  a  flowing  stream.  Ev- 
ery owner  of  land  is  entitled,  as  against  his  neighbor,  to  have  the  earth 
stand  and  the  water  flow  in  its  natural  condition.  In  the  case  of  run- 
ning water,  the  owner  of  each  estate  by  which  it  flows  has  only  the 
right  to  the  use  of  the  water  for  reasonable  purposes,  qualified  by  a 
like  right  in  every  other  owner  of  land  above  or  below  him  on  the 
same  stream.  But  in  the  case  of  land,  which  is  fixed  in  its  place,  each 
owner  has  the  absolute  right  to  have  his  land  remain  in  its  natural  con- 
dition, unaffected  by  any  act  of  his  neighbor,  and,  if  the  neighbor  digs 
upon  or  improves  his  own  land  so  as  to  injure  this  right,  may  maintain 
an  action  against  him  without  proof  of  negligence. 

But  this  right  of  property  is  only  in  the  land  in  its  natural  condition, 
and  the  damages  in  such  an  action  are  limited  to  the  injury  to  the  land 
itself,  and  do  not  include  any  injury  to  buildings  or  improvements 
thereon.  While  each  owner  may  build  upon  and  improve  his  own  es- 
tate at  his  pleasure,  provided  he  does  not  infringe  upon  the  natural 
right  of  his  neighbor,  no  one  can  by  his  own  act  enlarge  the  liability 
of  his  neighbor  for  an  interference  with  this  natural  right.  If  a  man 
is  not  content  to  enjoy  his  land  in  its  natural  condition,  but  wishes  to 
build  upon  or  improve  it,  he  must  either  make  an  agreement  with  his 
neighbor,  or  dig  his  foundations  so  deep,  or  take  such  other  precau- 
tions, as  to  insure  the  stability  of  his  buildings  or  improvements,  what- 
ever excavations  the  neighbor  may  afterwards  make  upon  his  own  land 
in  the  exercise  of  his  right. 

The  latest  and  the  most  authoritative  statement  of  the  law  of  Eng- 
land upon  this  point  before  the  American  Revolution  is  that  of  Chief 
Baron  Comyns,  who,  citing  Rolle's  Abridgment  and  Siderfin's  Reports 
(2  Rol.  Abr.  564;  Palmer  v.  Fleshees,  i  Sid.  167),  says  that  an  action 
upon  the  case  lies  for  a  nuisance  "if  a  man  dig  a  pit  in  his  land  so 


£g  LAW  OF  TORTS. 

near  that  my  land  falls  into  the  pit,"  but  does  not  lie  "if  a  man  build 
an  house,  and  make  cellars  upon  his  soil,  whereby  an  house  newly 
built  in  an  adjoining  soil  falls  down."  Com.  Dig.  "Action  upon  the 
Case  for  a  Nuisance,"  A,  C. 

In  Thurston  v.  Hancock,  12  Mass.  220,  7  Am.  Dec.  57,  which  was 
decided  in  1815,  and  is  the  leading  American  case  on  this  subject,  the 
plaintiff  in  1802  bought  a  parcel  of  land  upon  Beacon  Hill,  in  Boston, 
bounded  on  the  west  by  land  of  the  town  of  Boston,  and  in  1804  built 
a  brick  dwelling  house  thereon,  with  its  rear  two  feet  from  this  bound- 
ary, and  its  foundation  fifteen  feet  below  the  ancient  surface  of  the 
land.  The  defendants  in  1811  took  a  deed  of  the  adjoining  land  from 
the  town,  and  began  to  dig  and  remove  the  earth  therefrom,  and, 
though  notified  by  the  plaintiff  that  his  house  was  endangered,  contin- 
ued to  do  so  to  the  depth  of  forty-five  feet,  and  within  six  feet  of  the 
rear  of  the  plaintiff's  house,  and  thereby  caused  part  of  the  earth  on 
the  surface  of  the  plaintiff's  land  to  fall  away  and  slide  upon  the  de- 
fendant's land,  and  rendered  the  foundations  of  the  plaintiff's  house 
insecure,  and  the  occupation  thereof  dangerous,  so  that  he  was  obliged 
to  abandon  it.  The  court,  after  advisement,  and  upon  a  review  of  the 
earlier  English  authorities,  held  that  the  plaintiff  could  recover  for  the 
loss  of  or  injury  to  the  soil  merely,  and  not  for  the  damage  to  the 
house;  and  Chief  Justice  Parker,  in  delivering  judgment,  said:  "It 
is  a  common  principle  of  the  civil  and  of  the  common  law  that  the 
proprietor  of  land,  unless  restrained  by  covenant  or  custom,  has  the 
entire  dominion,  not  only  of  the  soil,  but  of  the  space  above  and  below 
the  surface,  to  any  extent  he  may  choose  to  occupy  it.  The  law, 
founded  upon  principles  of  reason  and  common  utility,  has  admitted  a 
qualification  to  this  dominion,  restricting  the  proprietor  so  to  use  his 
own  as  not  to  injure  the  property  or  impair  any  actual  existing  rights 
of  another.  Sic  utere  tuo  ut  alienum  non  Isedas."  "But  this  subjec- 
tion of  the  use  of  a  man's  own  property  to  the  convenience  of  his  neigh- 
bor is  founded  upon  a  supposed  pre-existing  right  in  his  neighbor  to 
have  and  enjoy  the  privilege  which  by  such  act  is  impaired."  12  Mass. 
224,  7  Am.  Dec.  57.  "A  man  in  digging  upon  his  own  land  is  to  have 
regard  to  the  position  of  his  neighbor's  land,  and  the  probable  conse- 
quences to  his  neighbor,  if  he  digs  too  near  his  line,  and  if  he  disturbs 
the  natural  state  of  the  soil  he  shall  answer  in  damages ;  but  he  is 
answerable  only  for  the  natural  and  necessary  consequences  of  his  act, 
and  not  for  the  value  of  a  house  put  upon  or  near  the  line  by  his  neigh- 
bor." "The  plaintiff  built  his  house  within  two  feet  of  the  western 
line  of  the  lot,  knowing  that  the  town,  or  those  who  should  hold  under 
it,  had  a  right  to  build  equally  near  to  the  line,  or  to  dig  down  into 
the  soil  for  any  other  lawful  purpose.  He  knew  also  the  shape  and 
nature  of  the  ground,  and  that  it  was  impossible  to  dig  there  without 
causing  excavations.  He  built  at  his  peril,  for  it  was  not  possible  for 
him,  merely  by  building  upon  his  own  ground,  to  deprive  the  other 
party  of  such  use  of  his  as  he  should  deem  most  advantageous.  There 
was  no  right  acquired  by  his  ten  years'  occupation  to  keep  his  neigh- 


GENERAL   PRINCIPLES.  47 

bor  at  a  convenient  distance  from  him."  "It  is,  in  fact,  damnum 
absque  injuria."  12  Mass.  229,  7  Am.  Dec.  57. 

Upon  the  facts  of  that  case  it  was  questionable  whether  the  acts  of 
the  defendant  would  not  have  caused  the  falling  away  of  the  plaintiff's 
land  if  no  house  had  been  built  thereon;  and  yet  the  court  held  the 
plaintiff  not  to  be  entitled  to  recover  any  damages  for  the  fall  of  his 
house,  without  regard  to  the  question  whether  the  weight  of  the  house 
did  or  did  not  contribute  to  the  fall  of  his  soil  into  the  pit  digged  by 
the  defendant.  No  claim  for  like  damages  was  made  in  this  common- 
wealth until  more  than  forty  years  afterwards,  when  the  decision  in 
Thurston  v.  Hancock  was  followed  and  confirmed.  Foley  v.  Wyeth, 
2  Allen,  131,  79  Am.  Dec.  771. 

In  Foley  v.  Wyeth  the  court,  after  stating  that  the  right  of  support 
from  adjoining  soil  for  land  in  its  natural  state  stands  on  natural  jus- 
tice, and  is  essential  to  the  protection  and  enjoyment  of  property  in  the 
soil,  and  is  a  right  of  property  which  passes  with  the  soil  without  any 
grant  for  the  purpose,  said :  "It  is  a  necessary  consequence  from  this 
principle  that  for  any  injury  to  his  soil,  resulting  from  the  removal  of 
the  natural  support  to  which  it  is  entitled,  by  means  of  excavation  of 
an  adjoining  tract,  the  owner  has  a  legal  remedy  in  an  action  at  law 
against  the  party  by  whom  the  work  has  been  done  and  the  mischief 
thereby  occasioned.  This  does  not  depend  upon  negligence  or  unskill- 
fulness,  but  upon  the  violation  pf  a  right  of  property  which  has  been 
invaded  and  disturbed.  This  unqualified  rule  is  limited  to  injuries 
caused  to  the  land  itself,  and  does  not  afford  relief  for  damages  by 
the  same  means  to  artificial  structures.  For  an  injury  to  buildings, 
which  is  unavoidably  incident  to  the  depression  or  slide  of  the  soil  on 
which  they  stand,  caused  by  the  excavation  of  a  pit  on  adjoining  land, 
an  action  can  only  be  maintained  when  a  want  of  due  care  or  skill,  or 
positive  negligence,  has  contributed  to  produce  it."  2  Allen,  133,  79 
Am.  Dec.  771.  And  it  was  accordingly  adjudged  that  if  the  defend- 
ant in  that  case,  by  excavating  and  carrying  away  earth  on  her  own 
land,  caused  the  plaintiff's  land  to  fall  and  sink  into  the  pit  which  she 
had  dug,  she  was  liable  for  the  injury  to  the  soil  of  the  plaintiff;  but 
that,  in  the  absence  of  any  proof  of  negligence  in  the  execution  of  the 
work,  the  jury  could  not  take  into  consideration,  as  an  element  of 
damage  for  which  compensation  could  be  recovered,  the  fact  that  the 
foundation  of  the  plaintiff's  house  had  been  made  to  crack  and  settle, 
although  the  weight  of  his  house  did  not  contribute  to  the  sliding  or 
crumbling  away  of  the  soil. 

By  the  modern  authorities,  in  Great  Britain,  it  is  clear  that  a  right 
to  the  support  of  a  building  by  adjacent  land  can  arise  only  by  grant 
or  prescription.  Wyatt  v.  Harrison,  3  B.  &  Ad.  871 ;  Partridge  v. 
Scott,  3  M.  &  W.  220;  Caledonian  Railway  v.  Sprot,  2  Macq.  449; 
Bonomi  v.  Backhouse,  E.  B.  &  E.  622,  and  9  H.  L.  Cas.  503. 

In  Bonomi  v.  Backhouse,  in  which  an  action  was  maintained  by  an 
owner  of  land  and  of  an  ancient  house  for  damage  occurring  within 
six  years  from  the  working  of  coal  mines,  280  yards  from  the  house, 


48  LAW  OF  TORTS. 

more  than  six  years  before  the  commencement  of  the  action,  Mr.  Jus- 
tice Willes,  delivering  the  judgment  in  the  Exchequer  Chamber,  which 
was  affirmed  by  the  House  of  Lords,  said :  "The  right  to  support  of 
land  and  the  right  to  support  of  buildings  stand  upon  different  foot- 
ings as  to  the  mode  of  acquiring  them ;  the  former  being  prima  facie 
a.  right  of  property  analogous  to  the  flow  of  a  natural  river,  or  of  air, 
though  there  may  be  cases  in  which  it  would  be  sustained  as  matter 
of  grant,  whilst  the  latter  must  be  founded  upon  prescription  or  grant, 
express  or  implied ;  but  the  character  of  the  rights,  when  acquired,  is 
in  each  case  the  same."  E.  B.  &  E.  654,  655.  And  Lord  Wensley- 
clale  said:  "I  think  it  perfectly  clear  that  the  right  in  this  case  was 
not  in  the  nature  of  an  easement,  but  that  the  right  was  to  the  enjoy- 
ment of  his  own  property,  and  that  the  obligation  was  cast  upon  the 
owner  of  the  neighboring  property  not  to  interrupt  that  enjoyment." 
9  H.  L.  Cas.  513. 

The  cases  of  Brown  v.  Robins,  4  H.  &  N.  186,  Hunt  v.  Peake,  H.  R. 
V.  Johns.  705,  and  Stroyan  v.  Knowles,  6  H.  &  N.  454,  in  which  it 
was  held  that  in  an  action  for  causing  soil  to  sink,  which  would  have 
sunk  if  there  had  been  no  building  upon  it,  the  damages  recovered 
might  include  the  injury  to  the  buildings  also,  are  directly  opposed  to 
our  own  cases  of  Thurston  v.  Hancock  and  Foley  v.  Wyeth,  in  the  lat- 
ter of  which  Brown  v.  Robins  was  before  the  court. 

Upon  a  question  of  this  kind,  affecting  all  the  lands  in  the  common- 
wealth, it  would  be  unjustifiable  and  mischievous  for  the  court  to 
change  a  rule  of  law  which  has  been  established  and  acted  upon  here 
for  sixty  years.  Even  in  England  it  is  held  that  for  digging  upon 
neighboring  land,  and  thereby  causing  the  plaintiff's  land  to  sink  and 
his  building  to  fall,  although  the  jury  find  that  the  land  would  have 
sunk  if  there  had  been  no  building  upon  it,  yet  no  action  will  lie,  if  no 
appreciable  damage  is  proved  to  the  land  without  the  building.  Smith 
v.  Thackerah,  L.  R.  I  C.  P.  564. 

The  weight  of  American  authority  is  in  accordance  with  the  deci- 
sions of  this  court.  It  has  generally  been  considered  that  for  an  ex- 
cavation causing  an  injury  to  the  soil  in  its  natural  state  an  action 
would  lie,  but  that  without  proof  of  a  right  by  grant  or  prescription 
in  the  plaintiff,  or  of  actual  negligence  on  the  part  of  the  defendant, 
no  action  would  lie  for  an  injury  to  buildings  by  excavating  adjoin- 
ing land  not  previously  built  upon.  Panton  v.  Holland,  17  Johns.  92, 
8  Am.  Dec.  369;  Lasala  v.  Holbrook,  4  Paige,  169,  25  Am.  Dec.  524; 
Hay  v.  Cohoes  Co.,  2  N..  Y.  159,  162,  51  Am.  Dec.  279;  McGuire  v. 
Grant,  25  N.  J.  Law,  356,  67  Am.  Dec.  49 ;  Richart  v.  Scott,  7  Watts, 
460,  32  Am.  Dec.  779;  Richardson  v.  Vermont  Central  Railroad,  25 
Vt.  465,  60  Am.  Dec.  283 ;  Beard  v.  Murphy,  37  Vt.  99,  102,  86  Am. 
Dec.  693 ;  Shrieve  v.  Stokes,  8  B.  Mon.  453,  48  Am.  Dec.  401 ;  Char- 
less  v.  Rankin,  22  Mo.  566,  66  Am.  Dec.  642. 

It  is  difficult  to  see  how  the  owner  of -a  house  can  acquire  by  pre- 
scription a  right  to  have  it  supported  by  the  adjoining  land,  inasmuch 
as  he  does  nothing  upon,  and  has  no  use  of,  that  land,  which  can  be 


GENERAL  PRINCIPLES.  49 

seen  or  known  or  interrupted  or  sued  for  by  the  owner  thereof,  and 
therefore  no  assent  of  the  latter  can  he  presumed  to  the  acquirement 
of  any  right  in  his  land  by  the  former.  The  English  cases  are  founded 
on  an  analogy  to  the  doctrine  of  ancient  lights,  which  is  not  in  force  in 
this  country.  Hide  v.  Thornborough,  2  Car.  &  K.  250,  255,  and  Stan- 
sell  v.  Jollard,  there  cited ;  Solomon  v.  Vintners'  Co.,  4  H.  &  N.  585, 
599,  602;  Chasemore  v.  Richards,  7  H.  L.  Cas.  349,  385,  386;  Green- 
leaf  v.  Francis,  18  Pick.  117,  122;  Keats  v.  Hugo,  115  Mass.  204,  215, 
15  Am.  Rep.  80;  Richart  v.  Scott,  7  Watts,  460,  462,  32  Am.  Dec. 
779;  Napier  v.  Bulwinkle,  5  Rich.  "Law,  311,  324.  But  this  case  does 
not  require  us  to  determine  that  question,  because  there  is  no  evidence 
that  the  structures  and  improvements  upon  the  plaintiff's  land  have 
been  there  for  twenty  years. 

Nor  is  it  necessary  to  consider  whether  negligence  on  the  part  of  the 
defendant  could  enlarge  the  measure  of  his  liability;  because  the  case 
stated  does  not  find  that  he  was  negligent,  nor  set  out  any  facts  from 
which  actual  negligence  can  be  inferred.  The  cause  of  action  is  that 
the  plaintiff  has  an  absolute  right  to  have  her  soil  stand  in  its  natural 
condition,  and  that  any  one  who  injures  that  right  is  a  wrongdoer,  in- 
dependently of  any  question  of  negligence.  Foley  v.  Wyeth,  2  Allen, 
131,  133,  79  Am.  Dec.  771 ;  Hay  v.  Cohocs  Co.,  2  N.  Y.  159,  162,  51 
Am.  Dec.  279 ;  Richardson  v.  Vermont  Lentral  Railroad,  25  Vt.  465, 
471,  60  Am.  Dec.  283;  Humphries  v.  Brogden,  12  Q.  B.  739. 

The  fact  that  the  defendant  was  not  the  owner  of  the  adjoining  land 
affords  him  no  exemption.  It  was  never  considered  necessary  in  an 
action  of  this  kind,  to  allege  that  the  defendant  owned  or  occupied  the 
land  on  which  the  digging  was  done  that  injured  the  plaintiff's  soil. 
Smith  v.  Martin,  2  Saund.  400,  and  note ;  Nicklin  v.  Williams,  10 
Exch.  259.  Even  an  agent  of  the  owner  of  the  adjoining  land  would 
be  liable  for  his  own  negligence  and  positive  wrongs,  for  his  principal 
could  not  confer  upon  him  any  authority  to  commit  a  tort  upon  the 
property  or  the  rights  of  another.  Bell  v.  Josselyn,  3  Gray,  309,  63 
Am.  Dec.  741;  Story  on  Agency,  §  311.  And,  upon  the  case  stated, 
the  defendant  appears  not  to  have  been  an  agent  of  the  owner  of  the 
land,  but  to  have  removed  the  soil  therefrom  for  his  own  benefit,  by 
permission  of  Gillighan,  who  had  a  like  agreement  with  and  license 
from  the  owner,  and  it  is  at  least  doubtful  whether  the  owner  of  the 
land  could  be  held  responsible  for  the  defendant's  acts.  Gayford  v. 
Nicholls,  9  Exch.  702;  Hilliard  v.  Richardson,  3  Gray,  349,  63  Am. 
Dec.  743. 

The  case  finds  that  the  defendant  ceased  his  work  towards  the  end  of 
October,  and  left  the  bank  in  such  a  shape  that  by  the  effect  of  rains 
and  frost  it  was  rendered  insufficient  to  hold  the  soil  of  the  plaintiff 
in  its  natural  condition,  and  began  to  give  way  at  once,  although  the 
plaintiff's  soil  was  not  actually  disturbed  till  the  month  of  March  fol- 
lowing. The  necessary  inference  is  that  by  the  operation  of  natural 
and  ordinary  causes  upon  the  land  as  it  was  left  by  the  excavations  of 
the  defendant,  and  which  he  took  no  precaution  to  guard  against,  part 
CHASE  (2o  ED.) — 4 


50  LAW  OP  TORTS. 

of  the  soil  of  the  plaintiff's  land  slid  and  fell  off,  and  for  the  injury 
so  caused  to  her  soil  this  action  may  be  maintained.  But  she  cannot 
maintain  an  action  for  the  injury  to  her  fences  and  shrubbery,  because 
her  natural  right  and  her  corresponding  remedy  are  confined  to  the 
land  itself,  and  do  not  include  buildings  or  other  improvements  thereon. 

The  remaining  question  is  of  the  measure  of  damages.  The  pecul- 
iar form  of  the  case  stated,  in  this  respect,  as  might  be  inferred  from 
its  terms,  and  as  was  admitted  at  the  argument,  has  been  occasioned 
by  incorporating  into  it  the  substance  of  the  award  of  an  arbitrator. 
It  is  agreed  that  the  "damages  occasioned  to  the  plaintiff  by  loss  of 
and  injury  to  her  soil  alone,  caused  by  the  acts  of  the  defendant, 
amount  to  ninety-five  dollars."  We  are  of  opinion  that  she  is  entitled 
to  recover  that  sum,  and  no  more.  She  is  clearly  not  entitled  to  re- 
cover the  cost  of  putting  her  land  into  and  maintaining  it  in  its  former 
condition,  because  that  is  no  test  of  the  amount  of  the  injury.  Mc- 
Guire  v.  Grant,  25  N.  J.  Law,  356,  67  Am.  Dec.  49.  She  cannot  re- 
cover the  difference  in  market  value,  because  it  does  not  appear  that 
that  difference  is  wholly  due  to  the  injury  to  her  natural  right  in  the 
land.  It  may  depend  upon  the  present  shape  of  the  lot,  upon  the  im- 
provements thereon,  or  upon  other  artificial  circumstances,  which  have 
nothing  to  do  with  the  natural  condition  of  the  soil. 

Judgment  for  the  plaintiff  for  $95. 

(If  the  person  excavating  on  his  own  land  be  called  A,  and  the  owner  of 
the  adjacent  premises  be  called  B,  the  following  cases  may  arise:  [1]  B's 
land  may  have  no  buildings  thereon,  and  may  fall  through  A's  digging,  though 
A's  work  is  done  carefully.  A  is  liable.  The  damages  are,  by  some  decisions, 
the  diminution  in  the  value  of  B's  land  [McGuire  v.  Grant,  25  N.  J.  Law,  356, 
67  Am.  Dec.  49 ;  Schultz  v.  Bower,  57  Minn.  493,  59  N.  W.  631,  47  Am.  St.  Rep. 
630;  Moellering  v.  Evans,  121  Ind.  195,  22  N.  B.  989,  6  L.  R.  A.  449];  by 
other  decisions,  the  actual  loss  of  and  injury  to  the  soil  [McGettigan  v.  Potts, 
149  Pa.  155,  24  Atl.  198 ;  Gilinore  v.  Driscoll,  supra  44].  All  the  cases  agree 
that  the  cost  of  restoring  the  land  to  its  former  condition  is  not  the  measure  of 
damages  [Id.].  [2]  B's  land  may  have  a  building  [or  buildings]  thereon,  and 
both  his  land  and  building  may  fall  [or  land  fall  and  building  be  injured]. 
Then,  [a]  if  A's  digging  were  done  carefully,  and  yet  it  would  have  caused 
B's  soil  to  fall  if  there  had  been  no  building  thereon,  A  is  liable.  By  English 
decisions  he  Is  liable  for  the  injury  to  the  building  as  well  as  to  the  soil 
[Brown  v.  Robins,  4  H.  &  N.  186] ;  but  by  Giliuore  v.  Driscoll,  ante  44,  he  is 
liable  only  for  the  injury  to  the  soil.  See  Gildersleeve  v.  Hammond,  109  Mich. 
431,  67  N.  W.  519,  521,  33  L.  R.  A.  46.  If,  however,  in  this  case  [a]  the  fall  of 
B's  land  would  not  have  caused  any  appreciable  damage,  A  is  not  liable.  Smith 
v.  Thackerah,  L.  R.  1  C.  P.  564.  [b]  If  A  digs  carefully,  and  B's  land  would  not 
have  fallen  unless  the  building  had  been  thereon,  A  is  not  liable,  for  the  real 
cause  of  the  injury  is  the  weight  of  the  superstructure.  Hemsworth  v.  Gush- 
ing, 115  Mich.  92,  72  N.  W.  1108 ;  Obert  v.  Dunn,  140  Mo.  476,  41  S.  W.  901 ; 
Clemens  v.  Speed,  93  Ky.  284,  19  S.  W.  660,  19  L.  R.  A.  240 ;  Booth  v.  Rome,  etc., 
R.  Co.,  140  N.  Y.  267,  275,  35  N.  E.  592,  24  L.  R.  A.  105,  37  Am.  St  Rep.  552. 
[c]  If  the  injury  to  B's  land  and  building  was  due  to  A's  negligence  in  exca- 
vating, A  is  liable.  Bait  &  P.  R.  Co.  v.  Reaney,  42  Md.  117 ;  Louisville,  etc., 
R.  Co.  v.  Bonhayo,  94  Ky.  67, -21  S.  W.  526;  Irvine  v.  Smith,  204  Pa.  58.  53 
Atl.  510 ;  Gildersleeve  v.  Hammond,  109  Mich.  431,  67  N.  W.  519,  33  L.  R.  A. 
46  [a  valuable  case] ;  Ketcham  v.  Newman,  141  N.  Y.  205,  210,  36  N.  E.  197, 


GENERAL   PRINCIPLES.  51 

24  L.  R.  A.  102 :  Moellering  v.  Evans,  121  Ind.  195,  22  N.  B.  989,  6  L.  R.  A 
449.  The  care  required  of  A  is  usually  said  to  be  "reasonable  care"  [Ketcharo 
v.  Newman,  supra;  City  of  Quincy  v.  Jones,  76  111.  231,  20  Am.  Rep.  243; 
Clemens  v.  Speed,  supra],  or  "the  care  that  a  man  of  ordinary  prudence  would 
exercise  in  the  circumstances  of  the  particular  situation"  [Larson  v.  Metr.  R. 
Co.,  110  Mo.  234,  19  S.  W.  416,  16  L.  R.  A.  330,  33  Am.  St.  Rep.  439 ;  cf.  Gilder- 
sleeve  v.  Hammond,  109  Mich.  431,  67  N.  W.  519,  33  L.  R.  A.  46].  Some  cases 
hold  that  A  should  give  notice  to  B  of  his  intention  to  excavate,  unless  B 
already  has  knowledge  thereof  [Schultz  v.  Byers,  53  N.  J.  Law,  442,  22  Atl. 
514,  13  L.  R.  A.  569,  26  Am.  St.  Rep.  435;  Clemens  v.  Speed,  93  Ky.  284.  19 
S.  W.  660,  19  L.  R.  A.  240],  at  least  if  he  intends  to  dig  below  B's  foundation 
wall  [Krish  v.  Ford  (Ky.)  43  S.  W.  237],  so  that  B  may  shore  up  or  prop  his 
wall,  or  otherwise  protect  himself  from  injury  [see  last  three  cases  cited; 
also,  Lapp  v.  Guttenkunst  (Ky.)  44  S.  W.  964] ;  while  other  cases  deny  that 
there  is,  by  common  law,  any  duty  to  give  notice  [Dorrity  v.  Rapp,  72  N.  Y. 
307,  310 ;  Trower  v.  Chadwick,  3  Bing.  N.  C.  334  ;  Id.,  4  Bing.  N.  C.  1 ;  see  Lar- 
son v.  Metr.  R.  Co.,  110  Mo.  234, 19  S.  W.  416].  In  some  states  there  are  statutes 
requiring  the  giving  of  notice.  First  Nat.  Bk.  v.  Villegra,  92  Cal.  96,  28  Pac.  97. 
In  New  York  there  is  a  statute,  applicable  to  New  York  City,  that  if  a  person 
excavates  more  than  10  feet  below  the  curb,  he  must  protect  at  his  own  expense 
a  wall  on  the  neighbor's  adjoining  land,  "if  afforded  the  necessary  license  to 
enter  on  such  land" ;  otherwise  the  neighbor  must  protect  his  own  wall,  as  at 
common  law.  Ketcham  v.  Newman,  141  N.  Y.  205,  36  N.  E.  197,  24  L.  R.  A. 
102. 

The  clear  weight  of  authority  now  supports  the  view  approved  in  Gil- 
more  v.  Driscoll,  ante,  44,  that  a  prescriptive  right  cannot  be  acquired  for  the 
support  of  a  building  by  adjacent  land.  Mitchell  v.  Mayor,  etc.,  of  Rome.  49 
Ga.  19,  15  Am.  Rep.  669 ;  Tunstall  v.  Christian,  80  Va.  1,  56  Am.  Rep.  581 ; 
Winn  v.  Abeles,  35  Kan.  85,  10  Pac.  443,  57  Am.  Rep.  138;  Handlan  v.  Mc- 
Manus,  42  Mo.  App.  551 ;  Clemens  v.  Speed,  93  Ky.  284,  19  S.  W.  660,  19  L. 
R.  A.  240 ;  Sullivan  v.  Zeiner,  98  Cal.  346,  33  Pac.  209.  20  L.  R.  A.  730.  There 
are,  however,  many  dicta  to  the  contrary,  and  in  England  such  a  prescriptive 
right  may  be  gained.  Dalton  v.  Angus,  L.  R.  6  A.  C.  740. 

Similar  rules  apply  in  cases  of  subjacent  support,  i.  e.,  where  one  man  owns 
the  surface  of  land,  and  another  owns  the  underlying  strata.  Wilms  v.  Jess, 
94  111.  464,  34  Am.  Rep.  242 ;  Pringle  v.  Vesta  Coal  Co.,  172  Pa.  438,  33  Atl. 
690;  Robertson  v.  Coal  Co.,  172  Pa.  566,  33  Atl.  706;  Yandes  v.  Wright.  66 
Ind.  319,  32  Am.  Rep.  109;  Marvin  v.  Brewster  Mining  Co.,  55  N.  Y.  538,  14 
Am.  Rep.  322.) 


(140  N.  Y.  267.  35  N.  E.  592,  24  L.  R.  A.  105,  37  Am.  St.  Rep.  552.) 

BOOTH  v.  ROME,  W.  &  O.  T.  R.  CO.  (in  part). 
(Court  of  Appeals  of  New  York.    December  5,  1893.) 

BLASTING  ON  LAND— INJURY  TO  NEIGHBORING  PROPERTY — LIABILITY  OF  RAIL- 
ROAD COMPANY. 

A  railroad  company  which,  having  to  do  blasting  on  its  own  land  in 
order  to  conform  its  roadbed  to  the  established  grade,  exercises  due  care 
in  doing  it,  when  this  is  the  only  practically  available  method  of  remov- 
ing the  rock,  is  not  liable  for  injury  to  a  building  on  plaintiff's  adjoining 
property,  when  such  injury  is  attributable  merely  to  concussion  of  the 
atmosphere  or  jarring  of  the  ground,  and  no  trespass  is  committed  by 
casting  rocks  on  plaintiff's  premises.  If,  however,  the  blasting  were 
negligently  done,  causing  such  damage,  an  action  would  lie. 


52  LAW  OF  TORTS. 

Appeal  from  Supreme  Court,  General  Term,  Fifth  Department. 

Action  by  Sophia  Booth  against  the  Rome,  Watertown  &  Ogdens- 
burg  Terminal  Railroad  Company  for  injuries  to  plaintiff's  property 
resulting  from  concussion  of  the  atmosphere  or  jarring  of  the  ground 
caused  by  blasting  on  defendant's  right  of  way.  From  a  judgment 
of  the  general  term  (63  Hun,  624,  17  N.  Y.  Supp.  336)  affirming  a 
judgment  for  plaintiff,  defendant  appeals.  Reversed. 

ANDREWS,  C.  J.  The  plaintiff,  upon  the  findings  of  the  jury,  sus- 
tained a  serious  injury.  It  is  true  that  witnesses  on  the  part  of  the 
defendant  gave  evidence  tending  to  show  that  the  house  was  imper- 
fectly constructed,  and  that  the  foundation  walls  were  giving  way 
before  the  excavation  was  commenced.  But,  the  verdict  having  been 
affirmed  by  the  general  term,  there  can  be  no  controversy  here  that  the 
blasting  caused  damage  to  the  house  to  the  amount  of  the  verdict.  But 
mere  proof  that  the  house  was  damaged  by  the  blasting  would  not  alone 
sustain  the  action.  It  must  further  appear  that  the  defendant,  in  using 
explosives,  violated  a  duty  owing  by  him  to  the  plaintiff  in  respect  of  her 
property,  or  failed  to  exercise  due  care.  Wrong  and  damage  must  con- 
cur, to  create  a  cause  of  action.  If  the  injury  was  occasioned  by  the 
omission  to  use  due  care,  this  alone  would  sustain  the  action,  even 
if  the  right  of  the  defendant  to  use  explosives  in  removing  the  rock 
was  conceded.  If  one,  by  carelessness  in  making  an  excavation  on 
his  own  land,  causes  injury  to  an  adjoining  building,  even  where 
the  owner  of  the  house  has  no  easement  of  support,  he  will  be  liable. 
Leader  v.  Moxton,  3  Wils.  460 ;  Lawrence  v.  Railway  Co.,  16  Adol. 
&  E.  (N.  S.)  643-653 ;  Leake,  Real  Prop.  248.  The  law  exacts  from 
a  person  who  undertakes  to  do  even  a  lawful  act  on  his  own  premises, 
which  may  produce  injury  to  his  neighbor,  the  exercise  of  a  degree  of 
care  measured  by  the  danger,  to  prevent  or  mitigate  the  injury.  The 
defendant  could  not  conduct  the  operation  of  blasting  on  its  own 
premises,  from  which  injury  might  be  apprehended  to  the  property 
of  his  neighbor,  without  the  most  cautious  regard  for  his  neighbor's 
rights.  This  would  be  reasonable  care  only  under  the  circumstances. 

The  plaintiff,  however,  on  this  record,  is  precluded  from  claiming 
that  the  judgment  may  be  sustained  because  of  negligence  in  the 
mode  of  blasting.  It  must  be  assumed  from  concessions  made  on 
the  trial,  and  from  the  rule  of  law  laid  down  by  the  court,  that  blast- 
ing was  the  only  mode  of  removing  the  rock  practically  available, 
that  it  was  conducted  with  due  care,  and  that  it  was  necessary  to 
enable  the  defendant  to  conform  the  roadbed  to  the  established 
grade.  This  is  a  case,  therefore,  of  unavoidable  injury  to  the  plain- 
tiff's house,  occasioned  by  the  act  of  the  defendant  in  blasting  on  his 
own  premises  in  order  to  adapt  them  to  a  lawful  use ;  the  mode  adopt- 
ed being  the  only  practicable  one,  and  the  work  having  been  prose- 
cuted with  due  care  and  without  negligence.  The  question  is  whether 
the  act  of  the  defendant,  connected  with  the  resulting  injury,  was  a 
legal  wrong,  for  which  the  plaintiff  has  a  right  of  action. 


GENERAL  PRINCIPLES.  53 

The  general  rule  that  no  one  has  absolute  freedom  in  the  use  of 
his  property,  but  is  restrained  by  the  coexistence  of  equal  rights  in 
his  neighbor  to  the  use  of  his  property,  so  that  each,  in  exercising 
his  right,  must  do  no  act  which  causes  injury  to  his  neighbor,  is  so 
well  understood,  is  so  universally  recognized,  and  stands  so  impreg- 
nably  in  the  necessities  of  the  social  state,  that  its  vindication  by 
argument  would  be  superfluous.  The  maxim  which  embodies  it  is 
sometimes  loosely  interpreted  as  forbidding  all  use  by  one  of  his  own 
property,  which  annoys  or  disturbs  his  neighbor  in  the  enjoyment  of 
his  property.  The  real  meaning  of  the  rule  is  that  one  may  not  use 
his  own  property  to  the  injury  of  any  legal  right  of  another.  The 
cases  are  numerous  where  the  lawful  use  of  one's  property  causes 
injury  to  adjacent  property,  for  which  there  is  no  remedy,  because 
no  right  of  the  adjacent  owner  is  invaded,  although  he  suffers  injury. 
The  cases  of  excavation  furnish  a  striking  illustration.  The  easement 
of  natural  support  of  the  land  of  one  by  the  land  of  the  adjacent 
owner  applies  only  to  lands  in  their  natural  condition,  and  does  not 
extend  so  as  to  give  the  owner  of  a  building  erected  on  the  confines 
of  his  land  the  right  to  have  it  supported  laterally  by  the  land  of  his 
neighbor;  and  so  it  has  become  the  settled  doctrine  of  the  law  that 
if  one,  by  excavating  on  his  own  land  adjacent  to  the  land  of  his 
neighbor,  using  due  care,  causes  a  building  on  his  neighbor's  land 
to  topple  over,  there  is  no  remedy,  provided  the  weight  of  the  build- 
ing caused  the  land  on  which  it  stood  to  give  way.  There  is,  in  the 
case  supposed,  injury,  but  no  wrong,  because  what  was  done  bv  the 
adjacent  owner  was  in  the  lawful  and  permitted  use  of  his  own  prop- 
erty. Wyatt  v.  Harrison,  3  Barn.  &  Adol.  871 ;  Partridge  v.  Scott, 
3  Mees.  &  W.  220;  Lasala  v.  Holbrook,  4  Paige,  170,  25  Am.  Dec. 
524;  Thurston  v.  Hancock,  12  Mass.  220,  7  Am.  Dec.  57. 

The  fundamental  proposition  upon  which  the  plaintiff's  counsel 
rests  his  argument  in  support  of  the  recovery  is  that  the  use  of  the 
explosives  in  blasting  constituted,  under  the  circumstances,  a  private 
nuisance,  and  that,  according  to  the  general  rule  of  law,  one  who 
creates  or  maintains  a  nuisance  is  liable  for  any  special  injury  to 
person  or  property  resulting  therefrom.  The  right  of  the  defendant 
to  excavate  on  its  land  for  its  roadbed  is  not  challenged,  but  the 
right  to  use  the  destructive  agency  of  gunpowder  in  the  work  of 
excavation,  liable  to  produce  injury,  and  which  did  occasion  it,  is  de- 
nied. The  exception  is  not  to  the  thing  done,  but  to  the  mode  of 
doing  it.  It  is  to  be  observed,  however,  that,  under  the  concessions 
in  the  case  and  the  rulings  on  the  trial,  it  must  be  assumed  that  the 
excavation  could  not  have  been  done  except  by  the  use  of  explosives 
This  mode  of  doing  the  work  was  therefore  of  the  substance  of  the 
right,  if  the  right  existed  at  all.  It  has  been  frequently  said  that  the 
right  of  an  owner  of  land  to  use  his  property  as  he  likes  does  not 
justify  the  maintaining  of  a  nuisance  or  the  commission  of  a  tres- 
pass ;  and  Blackstqne,  after  stating  that  where  one,  by  smelting 
works  on  his  own  land,  causes  noxious  vapors,  which  injure  the 


54  LAW  OF  TORTS. 

corn  or  grain  on  his  neighbor's  land  or  damages  his  cattle,  this 
would  be  a  nuisance,  proceeds  to  say  "that  if  you  do  any  other  act  in 
itself  lawful,  which  yet  being  done  in  that  place,  necessarily  tends 
to  the  damage  of  another's  property,  it  is  a  nuisance,  for  it  is  in- 
cumbent on  him  to  find  some  other  place  to  do  that  act,  where  it 
will  be  less  offensive."  2  Bl.  Comm.  c.  13,  p.  218.  There  are  many 
illustrations  in  the  books  of  the  doctrine  stated  by  the  learned  com- 
mentator, that  the  use  of  one's  own  land  for  the  purpose  of  a  lawful 
trade  may  become  a  nuisance  to  his  neighbor.  But  whether  a  par- 
ticular act  done  upon,  or  a  particular  use  of,  one's  own  premises,  con- 
stitutes a  violation  of  the  obligations  of  vicinage,  would  seem  to  de- 
pend upon  the  question  whether  such  act  or  use  was  a  reasonable 
exercise  of  the  right  of  property,  having  regard  to  time,  place,  and 
circumstances.  It  is  not  everything  in  the  nature  of  a  nuisance  which 
is  prohibited.  There  are  many  acts  which  the  owner  of  land  may 
lawfully  do,  although  it  brings  annoyance,  discomfort,  or  injury  to 
his  neighbor,  which  are  damnum  absque  injuria.  The  case  of  the 
building  caused  to  fall  by  an  excavation  in  an  adjoining  lot,  already 
referred  to,  is  an  illustration.  The  right  of  an  owner  of  a  mine  to 
excavate  the  mineral  in  his  mine,  although  by  so  doing  it  causes 
the  water  to  collect  therein,  and  to  be  discharged  into  an  adjacent 
mine  on  a  lower  level,  thereby  causing  damage  to  the  mine  of  such 
adjacent  owner,  is  another  illustration  of  a  lawful  use  of  property, 
followed  by  damage  to  the  property  of  another,  for  which  no  action 
lies.  Smith  v.  Kenrick,  7  C.  B.  515;  Baird  v.  Williamson,  15  C. 
B.  (N.  S.)  376;  Wilson  v.  Waddell,  2  App.  Cas.  95.  In  referring 
to  these  cases  in  Hurdman  v.  Railway  Co.,  3  C.  P.  Div.  168,  the  court 
said:  "The  owner  of  lands  holds  his  right  to  the  enjoyment  thereof 
subject  to  such  annoyance  as  is  the  consequence  of  what  is  called  the 
''natural  use  by  his  neighbor  of  his  land,'  and  that,  where  an  inter- 
ference with  his  enjoyment  by  something  in  the  nature  of  a  nuisance 
is  the  cause  of  complaint,  no  action  can  be  sustained,  if  this  is  the 
result  of  a  natural  use  by  a  neighbor  of  his  land."  Whether  a  par- 
ticular act  or  thing  constitutes  a  nuisance  may  depend  on  the  circum- 
stances and  surroundings.  The  use  of  premises  for  mechanical  or 
other  purposes,  causing  great  noise,  disturbing  the  peace  and  quiet 
of  those  living  in  the  vicinity,  and  rendering  life  uncomfortable,  or 
filling  the  air  with  noxious  vapors,  or  causing  vibration  of  the  neigh- 
boring dwellings,  constitute  nuisances,  and  such  use  is  not  justified 
by  the  right  of  property.  Fish  v.  Dodge,  4  Denio,  311,  47  Am.  Dec. 
254;  McKeon  v.  See,  51  N.  Y.  300,  10  Am.  Rep.  659;  Cogswell  v. 
Railroad  Co.,  103  N.  Y.  10,  8  N.  E.  537,  57  Am.  Rep.  701.  These 
and  like  cases  are  those  where  the  property  of  the  owner  is  appro- 
priated to  a  permanent  use,  which  is  a  constant  and  serious  inter- 
ference with  the  enjoyment  by  other  property  owners  of  their  prop- 
erty. But  there  is  a  manifest  distinction  b.etween  acts  and  uses 
which  are  permanent  and  continuous,  and  temporary  acts,  which  are 
resorted  to  in  the  course  of  adapting  premises  to  some  lawful  use. 


GENERAL  PRINCIPLES.  55 

For  example,  the  erection  of  an  iron  building  adjacent  to  a  dwelling 
might,  for  the  time  being,  cause  as  much  noise  and  discomfort  as 
would  arise  from  conducting  the  business  of  finishing  steam  boilers 
on  adjacent  premises ;  but  this  would  not  constitute  a  nuisance,  and 
the  owner  of  the  dwelling  would  have  no  remedy.  The  streets  may 
be  obstructed  temporarily,  subject  to  municipal  regulations,  for  the 
deposit  of  building  materials,  and  the  party  would  not  be  chargeable 
with  maintaining  a  nuisance.  The  test  of  the  permissible  use  of 
one's  own  land  is  not  whether  the  use  or  the  act  causes  injury  to 
his  neighbor's  property,  or  that  the  injury  was  the  natural  conse- 
quence, or  that  the  act  is  in  the  nature  of  a  nuisance,  but  the  inquiry 
is,  was  the  act  or  use  a  reasonable  exercise  of  the  dominion  which 
the  owner  of  property  has  by  virtue  of  his  ownership  over  his  prop- 
erty, having  regard  to  all  interests  affected,  his  own  and  those  of 
his  neighbors,  and  having  in  view,  also,  public  policy. 

The  rule  announced  by  the  trial  judge,  that  the  use,  by  an  owner 
of  property,  of  explosives,  in  excavating  his  land,  is  at  his  peril,  and 
imposes  liability  for  any  injury  caused  thereby  to  adjacent  property, 
irrespective  of  negligence,  is  far-reaching.  It  would  constitute,  if 
sustained,  a  serious  restriction  upon  the  use  of  property,  and  in  many 
cases  greatly  impair  its  value.  The  situation  in  the  city  of  New  York 
furnishes  an  apt  illustration.  The  rocky  surface  of  the  upper  part  of 
Manhattan  island  makes  blasting  necessary  in  the  work  of  excava- 
tion, and,  unless  permitted,  the  value  of  lots,  especially  for  business 
uses,  would  be  seriously  affected.  May  the  man  who  has  first  built 
a  store  or  warehouse  or  dwelling  on  his  lot,  and  has  blasted  the  rock 
for  a  basement  or  cellar,  prevent  his  neighbor  from  doing  the  same 
thing,  when  he  comes  to  build  on  his  lot  adjoining,  on  the  ground 
that  by  so  doing  his  own  structure  will  be  injured?  Such  a  rule 
would  enable  the  first  occupant  to  control  the  uses  of  the  adjoining 
property,  to  the  serious  injury  of  the  owner,  and  prevent,  or  tend 
to  prevent,  the  improvement  of  property.  The  first  occupant,  in 
building  on  his  lot,  exercised  an  undoubted  legal  right.  But  his 
prior  occupation  deprived  his  neighbor  of  no  legal  right  in  his  prop- 
erty. The  first  occupant  acquires  no  right  to  exclude  an  adjoining 
proprietor  from  the  free  use  of  his  land,  nor  to  use  his  own  land 
to  the  injury  of  his  neighbor  subsequently  coming  there.  Platt  v. 
Johnson,  15  Johns.  213,  8  Am.  Dec.  233  ;  Thurston  v.  Hancock,  supra  ; 
Tipping  v.  Smelting  Co.,  I  Ch.  App.  66 ;  Campbell  v.  Seaman,  63  N. 
Y.  568,  20  Am.  Rep.  567.  The  fact  of  proximity  imposes  an  obliga- 
tion of  care,  so  that  one  engaged  in  improving  his  own  lot  shall  do 
no  unnecessary  damage  to  his  neighbor's  dwelling;  but  it  cannot, 
we  think,  exclude  the  former  from  using  the  necessary  and  usual 
means  to  adapt  his  lot  to  any  lawful  use,  although  the  means  used 
may  endanger  the  house  of  his  neighbor. 

We  have  found  no  case  directly  in  point  upon  the  interesting  and 
important  practical  question  involved  in  this  appeal.  It  was  held 
in  the  leading  case  of  Hay  v.  Cohoes  Co.,  2  N.  if.  159,  51  Am.  Dec. 


56  LAW  OF  TORTS. 

279,  that  the  right  of  property  did  not  justify  the  owner  of  land  in 
committing  a  trespass  on  the 'land  of  his  neighbor  by  casting  rocks 
thereon  in  blasting  for  a  canal  on  his  own  land  for  the  use  of  his 
mill,  although  he  exercised  all  due  care  in  executing  the  work.  In 
that  case  there  was  a  physical  invasion  by  the  defendant  of  the  land 
of  the  plaintiff.  This,  the  court  held,  could  not  be  justified  by  any 
consideration  of  convenience  or  necessity  connected  with  the  work 
in  which  the  defendant  was  engaged.  In  the  conflict  of  rights  the 
court  considered  that  public  policy  required  that  the  right  of  the 
defendant  to  dig  the  canal  on  his  own  land  must  yield  to  the  superior 
right  of  the  plaintiff  to  be  protected  against  an  invasion  of  his  pos- 
session by  the  act  of  the  defendant.  The  case  of  Benner  v.  Dredging 
Co.,  134  N.  Y.  156,  31  N.  E.  328,  17  L.  R.  A.  220,  30  Am.  St.  Rep. 
649,  was  the  case  of  an'  injury  to  the  plaintiff's  house,  resulting  from 
the  jarring  caused  by  the  blasting  of  rocks  in  Hell  Gate ;  and  it  was 
held  that  the  injury  was  remediless,  for  the  reason  that  the  defendant 
was  acting  under  the  authority  of  the  government  of  the  United 
States,  by  virtue  of  a  contract  authorized  by  congress.  It  has  been 
held  that  the  keeping  of  gunpowder  in  large  quantities  near  inhab- 
ited dwellings  is  a  nuisance,  and  in  the  case  of  explosion  subjects 
the  party  keeping  it  to  liability  for  damages  occasioned  thereby. 
Myers  v.  Malcolm,  6  Hill,  292,  41  Am.  Dec.  744;  Heeg  v.  Licht,  80 
N.  Y.  579,  36  Am.  Rep.  654.  So,  also,  it  has  been  held  that  the  work- 
ing of  quarries  by  the  use  of  gunpowder,  to  the  injury  of  property  in 
the  vicinity,  gives  a  right  of  action.  City  of  Tiffin  v.  McCormack, 
34  Ohio  St.  638,  32  Am.  Rep.  408;  Scott  v.  Bay,  3  Md.  431.  Many 
of  the  cases  cited  by  the  counsel  are  cases  of  the  permanent  appro- 
priation of  property,  for  damages,  or  noxious  uses  causing  dam- 
age. But  the  defendant  here  was  engaged  in  a  lawful  act.  It  was 
done  on  its  own  land,  to  fit  it  for  a  lawful  business.  It  was  not 
an  act  which,  under  all  circumstances,  would  produce  injury  to  its 
neighbor,  as  is  shown  by  the  fact  that  other  buildings  near  by  were 
not  injured.  The  immediate  act  was  confined  to  its  own  land ;  but 
the  blasts,  by  setting  the  air  in  motion,  or  in  some  other  unexplained 
way,  caused  an  injury  to  the  plaintiff's  house.  The  lot  of  the  defendant 
could  not  be  used  for  its  roadbed  until  it  was  excavated  and  graded. 
It  was  to  be  devoted  to  a  common  use ;  that  is,  to  a  business  use. 
The  blasting  was  necessary,  was  carefully  done,  and  the  injury  was 
consequential.  There  was  no  technical  trespass.  Under  these  cir- 
cumstances, we  think,  the  plaintiff  has  no  legal  ground  of  complaint. 
The  protection  of  property  is  doubtless  one  of  the  great  reasons  for 
government.  But  it  is  equal  protection  to  all  which  the  law  seeks 
to  secure.  The  rule  governing  the  rights  of  adjacent  landowners  in 
the  use  of  their  property  seeks  an  adjustment  of  conflicting  interests 
through  a  reconciliation  by  compromise,  each  surrendering  some- 
thing of  his  absolute  freedom  so  that  both  may  live.  To  exclude 
the  defendant  from  blasting  to  adapt  its  lot  to  the  contemplated  uses, 
at  the  instance  of  the  plaintiff,  would  not  be  a  compromise  between 


GENERAL  PRINCIPLES.  57 

conflicting  rights,  but  an  extinguishment  of  the  right  of  the  one  for 
the  benefit  of  the  other.  This  sacrifice,  we  think,  the  law  does  not 
exact.  Public  policy  is  sustained  by  the  building  up  of  towns  and 
cities  and  the  improvement  of  property.  Any  unnecessary  restraint 
on  freedom  of  action  of  a  property  owner  hinders  this.  The  law  is 
interested,  also,  in  the  preservation  of  property  and  property  rights 
from  injury.  Will  it,  in  this  case,  protect  the  plaintiff's  house  by 
depriving  the  defendant  of  his  right  to  adapt  his  property  to  a  lawful 
use,  through  means  necessary,  usual,  and  generally  harmless?  We 
think  not. 

The  judgment  should  be  reversed,  and  a  new  trial  ordered,  with  costs 
to  abide  the  event.     All  concur. 

(To  the  same  effect  is  Holland  House  Co.  y.  Baird,  169  N.  Y.  136,  62  N.  B.  149.) 


(40  N.  J.  Eq.  447,  3  Atl.  168.) 

OCEAN  GROVE  CAMP  MEETING  ASS'N  v.  COMMISSIONERS  OF  ASBURY 

PARK. 

(Court  of  Chancery  of  New  Jersey.    October  Term,  1885.) 

SUBTERRANEAN  WATERS— DIVERSION. 

Complainants,  by  boring  for  water,  on  land  owned  by  them,  to  a  depth 
of  about  400  feet,  had  obtained  a  flow  of  50  gallons  per  minute.  Subse- 
quently defendants,  needing  water  for  use  on  their  land,  three-eighths  of 
a  mile  from  complainants',  and  having  failed  to  obtain  a  supply  by  boring 
thereon,  sank  a  shaft  on  land  of  third  parties,  by  permission  of  the  latter, 
within  500  feet  of  complainants'  well,  to  nearly  the  same  depth,  and 
thereby  secured  a  flow  of  30  gallons  a  minute,  and  thereupon  the  supply 
from  complainants'  well  fell  to  30  gallons  per  minute.  Held  that,  in  the 
absence  of  proof  that  the  water  was  taken  from  a  stream,  it  must  be  pre- 
sumed to  be  the  property  of  the  owner  of  the  fee ;  and  complainants  could 
not  maintain  an  action  to  compel  defendants  to  close  the  well  so  opened 
by  the  latter,  or  to  restrain  them  from  sinking  other  wells  nearer  com- 
plainants' well. 

On  order  to  show  cause  why  injunction  should  not  issue. 

BIRD,  V.  C.  More  than  15  years  ago  the  complainants  purchase( 
a  large  tract  of  land  fronting  upon  the  ocean,  chiefly  for  the  purpose:, 
of  a  summer  resort  to  exercise  the  right  of  worship.  The  enter- 
prise has  so  grown  that  in  winter  it  has  a  population  of  about  5,000, 
and  in  summer  of  10,000  or  15,000.  The  authorities  soon  discovered 
that,  to  preserve  the  good  health  of  the  residents  and  visitors,  it  was 
absolutely  necessary  to  improve  their  water-supply  and  sewerage  sys- 
tem. To  do  this  they  bored  for  water,  and  at  the  depth  of  over  400 
feet  struck  water  which  gave  them  a  flow  of  50  gallons  per  minute  at 
an  elevation  above  the  surface  of  28  feet.  This  they  carried  into  the 
city  by  means  of  pipes,  and  supplied  therewith  about  70  hotels  and 


58  LAW  OF  TORTS. 

cottages.  They  also  applied  it  to  the  improvement  of  their  sewerage 
system.  The  volume  of  water  thus  produced  continued  to  flow  undi- 
minished  in  quantity  and  with  unabated  force  until  the  action  of  the 
defendants  now  complained  of,  and  to  restrain  which  the  bill  in  this 
cause  was  filed.  The  Commissiorers  of  Asbury  Park,  a  corporate 
body,  purchased  a  large  tract  of  land  immediately  north  of  and  adja- 
cent to  the  tract  owned  by  Ocean  Grove.  Under  their  management, 
this,  too,  has  become  a  famous  seaside  resort.  Its  population  is  equal 
to,  if  not  greater  at  all  times  than,  that  of  Ocean  Grove.  The  authori- 
ties saw  a  like  necessity  for  an  increased  supply  of  wholesome  water. 
They  entered  into  a  contract  with  others,  a  portion  of  these  defend- 
ants, to  procure  for  them  water  by  boring  in  the  earth.  These,  their 
agents,  sank  several  shafts  to  the  depth  of  over  400  feet  without  satis- 
factory success.  One  shaft  yielded  about  4  gallons  to  the  minute,  and 
another,  which  yielded  the  most,  only  9.  All  of  the  wells  were  upon 
the  land  and  premises  of  the  Asbury  Park  Association.  It  became 
evident,  and  is  manifest  to  the  most  casual  observer,  that  these  wells 
would  not  supply  the  volume  of  water  needed.  It  was  also  manifest 
that  the  experiment  to  procure  water  by  digging  upon  their  own  land 
had  been  quite  reasonably  extended,  although  not  so  complete  as  to 
satisfy  the  mind  that  they  cannot  obtain  water  on  their  own  premises 
as  well  as  elsewhere,  since  it  is  in  evidence  that  there  are  two  wells  on 
their  premises,  sunk  by  individuals,  which  produce  15  gallons  each 
per  minute,  being  as  much  in  quantity  as  they  procure  from  the  well 
which  is  complained  of.  Failing  in  their  efforts  upon  their  own  prem- 
ises, they  go  elsewhere,  on  the  land  owned  by  individuals,  and,  pro- 
curing a  right  from  individual  owners,  sink  a  shaft  upon  the  public 
highway,  near  to  the  land  of  the  complainants,  and  within  500  feet  of 
the  complainants'  well.  This  bore  extended  to  the  depth  of  416  feet, 
within  8  feet  of  the  depth  of  complainants'  well.  At  this  depth  they 
secured  a  flow  of  water  at  the  rate  of  30  gallons  per  minute,  and  the 
supply  from  the  complainants'  well  was  almost  immediately  decreased 
from  50  gallons  to  30  per  minute.  The  diminution  in  water  was  im- 
mediately felt  by  many  of  those  who  depended  for  a  supply  from  this 
source  in  Ocean  Grove.  The  Asbury  Park  authorities  propose  to  sink 
other  wells  still  nearer  the  well  of  complainants.  This  bill  asks  that 
they  may  be  prohibited  from  so  doing,  and  that  they  may  be  com- 
manded to  close  the  well  already  opened,  which,  it  is  alleged,  is  sup- 
plied from  the  same  source  that  the  complainants'  well  is  supplied  from. 
The  complainants  are  first  in  point  of  time.  They  are  upon  their 
own  land  and  premises.  They  procure  water  from  their  own  soil  to 
be  used  in  connection  with  their  said  premises,  in  the  improvement 
and  beneficial  enjoyment  of  their  occupation.  In  this  they  have  exer- 
cised an  indefeasible  and  unqualified  right.  It  matters  not  whether 
the  water  which  they  obtain  is  from  a  pond  or  under-ground  basin,  or 
only  the  result  of  percolation,  or  from  a  flowing  stream.  The  defend- 
ants went  from  their  own  land  upon  the  land  of  strangers,  and  ob- 
tained permission  to  bore  for  water,  and  there  sink  their  shaft,  procur- 


GENERAL   PRINCIPLES.  59 

mg  water  from  the  same  source  that  the  complainants  procured  their 
water,  and  diverted  it  and  carried  it  to  their  premises,  three-eighths  of 
a  mile,  for  use.  Can  they  be  restrained  from  doing  this?  A  very 
careful  consideration  of  a  great  many  authorities  leads  me  to  the  con- 
clusion that  they  cannot  at  the  instance  of  the  complainants.  Ang. 
Water-Courses,  §§  109-114,  inclusive;  Gould,  Waters,  §  280;  Ballard 
v.  Tomlinson,  26  Ch.  Div.  194;  Chasemore  v.  Richards,  7  H.  L.  Cas. 
349,  5  Hurl.  &  N.  982 ;  Acton  v.  Blundell,  12  Mees.  &  W.  324 ;  Chase 
v.  Silverstone,  62  Me.  175,  16  Am.  Rep.  419;  Roath  v.  Driscoll,  20 
Conn.  533,  52  Am.  Dec.  352 :  Village  of  Delhi  v.  Youmans,  45  N.  Y. 
362,  6  Am.  Rep.  100;  Goodale  v.  Tuttle,  29  N.  Y.  459;  Wheatley  v. 
Baugh,  25  Pa.  528,  64  Am.  Dec.  721;  Frazier  v.  Brown,  12  Ohio  St. 
294. 

The  courts  all  proceed  upon  the  ground  that  waters  thus  used  and 
diverted  are  waters  which  percolate  through  the  earth,  and  are  not 
distinguished  by  any  certain  and  well-defined  stream,  and  conse- 
quently are  the  absolute  property  of  the  owner  of  the  fee,  as  com- 
pletely as  are  the  ground,  stones,  minerals,  or  other  matter  to  any 
depth  whatever  beneath  the  surface.  The  one  is  just  as  much  the 
subject  of  use,  sale,  or  diversion  as  the  other.  The  owner  of  a  mine 
encounters  innumerable  drops  of  water  escaping  from  every  crevice 
and  fissure.  These,  when  collected,  interfere  with  his  progress,  and 
he  may  remove  them,  although  the  spring  or  well  of  the  land-owner 
below  be  diminished  or  destroyed.  So  the  owner  or  owners  of  a  bog, 
marsh,  or  meadow  may  sink  wells  therein,  and  carry  off  the  waters 
collected  in  them,  to  the  use  or  enjoyment  of  a  distant  village  or 
town,  although  the  waters  of  a  large  stream  upon  the  surface  be 
thereby  so  diminished  as  to  injure  a  mill-owner  who  had  enjoyed 
the  use  of  the  waters  of  the  stream  for  many  years.  Upon  these  prin- 
ciples, there  can  be  no  doubt  but  that  every  lot-owner  in  Ocean  Grove 
or  Asbury  Park  could  sink  a  well  on  his  lot  to  any  depth,  and,  in 
case  one  should  deprive  his  neighbor  of  a  portion  or  all  of  his  sup- 
posed treasure,  no  action  would  lie.  A  moment's  reflection  will 
enable  every  one  to  perceive  that  such  conditions  or  contingencies 
are  necessarily  incident  to  the  ownership  of  the  soil.  In  the  case  be- 
fore me  there  is  no  proof  that  the  waters  in  question  are  taken  from 
a  stream,  and  I  have  no  right  to  presume  that  they  are.  The  pre- 
sumption is  the  other  way.  It  seems  to  be  my  very  plain  duty  to 
discharge  the  order  to  show  cause,  with  costs. 

(This  rule  as  to  percolating  waters  is  well  established.  The  following  cases 
may  be  cited  in  addition  to  those  referred  to  in  the  above  decision :  Brown 
v.  Illius,  27  Conn.  84,  71  Am.  Dec.  49 ;  Lybe's  Appeal,  106  Pa.  626,  51  Am.  Rep. 
542 ;  Wilson  v.  New  Bedford,  108  Mass.  201,  265,  11  Am.  Rep.  352 ;  Bloodgtood 
v.  Ayers,  108  N.  Y.  400,  405,  15  N.  E.  433,  2  Am.  St  Rep.  443;  Wheelock  v. 
Jacobs,  70  Vt  162,  4  Atl.  41,  43  L.  R.  A.  105,  67  Am.  St  Rep.  659.  Neither  an 
action  at  law  or  in  equity  will  lie  for  the  damages  sustained. 

In  Maine  it  has  been  held  that  if  one  who  sinks  a  well,  and  draws  off  his 
neighbor's  percolating  waters,  acts  in  good  faith,  he  is  not  liable,  but  that  he 
is  liable  if  the  act  were  done  maliciously  and  for  the  "sole  purpose  of  inflicting 


GO  LAW  OF  TORTS. 

damage  upon  the  neighbor."  Chesley  v.  King,  74  Me.  164,  43  Am.  Rep.  569; 
Stevens  v.  Kelley,  78  Me.  445,  6  Atl.  868,  57  Am.  Rep.  813;  S.  P.  in  dicta, 
Greenleaf  v.  Francis,  18  Pick.  117 ;  Wheatley  v.  Baugh,  25  Pa.  528,  64  Am.  Dec. 
721.  This  doctrine  is,  however,  denied  in  various  other  states  and  in  England, 
the  general  rule  being  followed  that  "an  act  which  is  lawful  in  itself  does  not 
become  unlawful  because  done  with  a  malicious  or  wrongful  motive."  Mayor, 
etc.,  of  Bradford  v.  Pickles  [1895]  A.  C.  587 ;  Wheelock  v.  Jacobs,  70  Vt.  162, 
167,  40  Atl.  41,  43  L.  R.  A.  105,  67  Am.  St  Rep.  659:  Huber  v.  Merkel,  117  Wis. 
355,  94  N.  W.  354,  356,  62  L.  R.  A.  589 ;  Phelps  v.  Nowlen,  72  N.  Y.  39,  28  Am. 
Rep.  93,  and  cases  cited. 

In  New  York  the  general  rule  above  stated  as  to  percolating  waters  is 
maintained,  but  it  has  been  held  not  applicable  in  a  case  where  a  city,  in 
order  to  obtain  a  more  extensive  water  supply,  constructed  a  large  pump- 
ing plant  by  which  the  underground  waters  were  drained  off  from  the  neigh- 
boring lands  [a  total  area  of  from  five  to  eleven  square  miles],  to  the  great 
injury  of  the  farmers  there  residing.  It  was  realized  by  the  city  in  advance 
that  just  such  results  would  follow,  and  the  court  characterized  its  acts 
as  "unreasonable"  and  "unjust."  Forbell  v.  City  of  N.  Y.,  164  N.  Y.  522,  58 
N.  E.  644,  51  L.  R.  A.  695,  79  Am.  St  Rep.  666;  Smith  v.  City  of  Brooklyn.  18 
App.  Div.  340,  46  N.  Y.  Supp.  141,  s.  c.  on  appeal  160  N.  Y.  357,  54  N.  E.  787, 
45  L.  R.  A.  664.  As  to  the  measure  of  damages,  see  Reisert  v.  City  of  N.  Y., 
174  N.  Y.  196,  66  N.  E.  731.  To  the  same  effect  is  Kate  v.  Walkinshaw  [Cal.] 
70  Pac.  663,  74  Pac.  766.  Other  recent  cases  hold  that  one  may  draw  perco- 
lating waters  from  his  neighbor's  land  for  a  "reasonable  or  beneficial  use,"  but 
not  to  let  them  go  to  waste.  Barclay  v.  Abraham  [Iowa]  96  N.  W.  1080 ;  Still- 
water  Water  Co.  v.  Farmer  [Minn.]  93  N.  W.  907,  00  L.  R.  A.  875.) 


In  some  classes  of  cases,  there  must  be  damage  sustained 
in  order  that  there  may  be  a  cause  of  action  for  tort. 

(5  Best  &  S.  384.) 

ROBERTS  et  ux.  v.  ROBERTS. 

(Court  of  Queen's  Bench.    June  3,  1864.) 

SLANDER— SPECIAL  DAMAGE. 

In  an  action  by  husband  and  wife  for  slander  of  the  latter,  the  declara- 
tion alleged  that  the  wife  was  a  member  of  a  certain  religious  sect  and  of 
one  of  the  societies  of  such  sect ;  that  the  sect  and  its  societies,  and  the 
members  thereof,  were  subject  to  rules  and  regulations,  by  which  a  member 
of  one  such  society  could  not  become  a  member  of  another  society  in  the 
sect,  unless  the  leaders  or  elders  of  the  first  society  certified  that  such 
member  was  morally  and  otherwise  fit  to  be  a  member ;  and  that  by  reason 
of  words  spoken  by  defendant  of  the  wife,  imputing  to  her  immoral  con- 
duct, she  was  not  allowed  to  continue  to  be  a  member  of  the  society,  and  the 
leaders  or  elders  thereof  refused  to  certify  that  she  was  morally  or  other- 
wise fit  to  be  a  member  of  the  sect,  or  of  any  society  of  the  same,  and 
she  was  not  allowed  to  become  a  member  of  a  certain  society  thereof,  and 
was  prevented  from  attending  religious  worship,  and  was  injured  in  her 
good  name  and  reputation,  and  became  sick  and  greatly  distressed  in  body 
and  mind.  HrU,  that  no  special  damage  was  alleged  sufficient  to  make  the 
words  actionable. 


GENERAL  PRINCIPLES.  61 

Demurrer  to  declaration. 

Action  by  Robert  Roberts  and  Margaret  Roberts,  his  wife,  for  an 
alleged  slander  on  the  latter. 

The  declaration  stated  that  the  plaintiff  Margaret  was  a  member 
of  a  sect  of  Protestant  dissenters,  to-wit,  Calvinistic  Methodists,  and 
was  a  member  of  a  private  society  and  congregation  of  that  sect  held 
at  Denbigh,  in  North  Wales,  and  the  sect,  and  the  different  societies 
of  it,  were  subject  to  certain  rules  and  regulations,  and  the  different 
members  of  the  sect  and  the  societies  were  respectively  subject  to 
those  rules  and  regulations,  and  under  the  control  and  authority  of 
the  several  respective  societies,  and  of  the  leaders  of  the  same,  with 
respect  to  the  moral  and  religious  conduct  of  such  members,  and  with 
respect  to  their  being  respectively  allowed  and  permitted  to  be  and 
continue  to  be  members  of  the  different  societies  and  congregations 
of  the  sect;  and  by  those  rules  and  regulations  a  member  of  one  so- 
ciety in  the  sect  could  not  become  a  member  of  another  society  in  the 
sect  unless  the  leaders  or  elders  of  the  first-mentioned  society  certified 
that  the  said  member  was  morally  and  otherwise  fit  to  be  a  member 
of  such  sect,  and  of  a  society  of  the  same;  and  the  defendant,  being 
a  member  of  the  sect,  and  of  the  society  to  which  the  plaintiff  Mar- 
garet then  belonged,  and  well  knowing  the  premises,  falsely  and  mali- 
ciously spoke  and  published  of  the  plaintiff  Margaret,  and  of  her  as  a 
member  of  such  sect  and  society,  and  in  the  presence  of  the  leaders 
or  elders  and  other  members  of  the  society  and  congregation  which 
the  plaintiffs  and  the  defendant  had  just  before  then  been  attending, 
the  false  and  scandalous  words  following,  in  the  Welsh  language, 
(setting  them  out;)  which  words,  being. translated  into  the  English 
language,  have  the  meaning  and  effect  following,  and  were  so  under- 
stood by  the  persons  to  whom  they  were  so  spoken  and  published: 
that  is  to  say,  "You  [meaning  the  plaintiff  Robert  Roberts]  have  got 
for  a  wife  [meaning  the  plaintiff  Margaret]  as  great  a  whore  as  any 
in  the  town  of  Liverpool.  I  had  connection  with  her  several  times, 
the  last  time  a  night  or  two  before  she  left  for  Liverpool ;"  meaning 
thereby  that  the  plaintiff  Margaret  had  been  guilty  of  such  immoral 
conduct  as  would  prevent  her  being  allowed  and  permitted  to  remain, 
become  or  be  a  member  of  any  society  and  congregation  of  the  sect 
aforesaid;  and  by  means  of  the  premises  the  plaintiff  Margaret  was 
not  allowed  or  permitted  to  continue  or  be  any  longer  a  member  of 
the  society  and  congregation  aforesaid,  and  was  turned  out  of  the 
same,  and  the  leaders  or  elders  of  the  society  refused  to  certify  that 
the  plaintiff  Margaret  \vas  morally  or  otherwise  fit  to  be  a  member 
of  the  sect  or  of  any  society  or  congregation  of  the  same;  and  the 
plaintiff  Margaret,  being  desirous  of  becoming  a  member  of  a  society 
and  congregation  of  the  sect  in  Liverpool,  was  not  allowed  or  per- 
mitted or  able  to  become  a  member  of  the  society  in  Liverpool,  and 
was  prevented  from  attending  religious  worship;  and  by  means  of 
the  premises  the  plaintiff  Margaret  became  and  was  greatly  injured 
in  her  good  name  and  reputation,  and  became  sick  and  ill,  and  greatly 


62  LAW  OF  TORTS. 

distressed  in  body  and  mind.  Averment,  that,  by  means  of  the  prem- 
ises, the  plaintiff  Robert  Roberts  had  been  put  to  and  incurred  great 
expenses  in  and  about  nursing  the  plaintiff  Margaret,  and  endeavor- 
ing to  get  her  cured  from  her  sickness,  illness,  and  distress  of  mind, 
and  had  sustained  divers  other  injuries  and  damages;  and  the  plain- 
tiffs claimed  £ 500. 

Mclntyre,  for  defendant. 

The  words  in  the  declaration  are  not  actionable  without  special 
damage.  Allsop  v.  Allsop,  5  Hurl.  &  N.  534;  Lynch  v.  Knight,  9 
H.  L.  Cas.  577.  And  no  special  damage  is  alleged  sufficient  to  render 
the  words  actionable  by  reason  of  such  damage.  The  allegation  that 
the  plaintiff  Margaret  was  injured  in  her  good  name  and  reputation, 
and  became  sick  and  ill  and  distressed  in  body  and  mind,  is  not  suffi- 
cient. Allsop  v.  Allsop,  5  Hurl.  &  N.  534.  [Crompton  Hutton,  for 
plaintiffs:  That  is  admitted.]  The  remaining  head  of  special  dam- 
age, that  she  was  not  allowed  to  continue  a  member  of  the  society  and 
congregation  of  Calvinistic  Methodists,  and  was  prevented  from  at- 
tending religious  worship,  is  not  temporal  or  pecuniary  damage.  The 
first  part  amounts  to  no  more  than  that  she  was  excluded  from  as- 
sociating with  particular  persons.  It  is  not  alleged  that  she  was  a 
teacher  in  the  society  and  congregation,  or  that  she  derived  any  spe- 
cial advantage  from  being  a  member  of  it.  As  to  the  other  part,  the 
elders  could  not  prevent  her  from  attending  the  chapel.  In  Bateman 
v.  Lyall,  7  C.  B.  (N.  S.)  638,  there  was  an  allegation  of  loss  of  custom- 
ers by  the  husband  in  his  business  in  consequence  of  the  words  spoken 
of  his  wife  by  the  female  defendant. 

Crompton  Hutton,  for  plaintiffs. 

Sufficient  special  damage  to  the  wife  is  shown  for  which  the  hus- 
band may  maintain  this  action.  If  the  special  damage  must  be  pe- 
cuniary, an  action  for  slander  of  a  wife  never  could  be  maintained, 
as  the  damage  would  be  to  the  husband,  not  to  the  wife.  An  action 
will  lie  for  words  spoken  by  which  a  woman  has  lost  her  marriage. 
Davis  v.  Gardiner,  4  Coke,  i6b.  [Blackburn,  J. :  Marriage  has  al- 
ways been  considered  a  valuable  consideration.]  In  Lynch  v.  Knight, 
9  H.  L,.  Cas.  577,  the  special  damage  relied  upon>was  not  the-natural 
and  probable  consequence  of  the  words  spoken ;  but  it  was  the  opinion 
of  Lord  Campbell,  at  page  589,  that  loss  of  consortium  or  conjugal 
society  would  give  a  cause  of  action  to  a  wife  as  well  as  to  a  husband. 
[Blackburn,  J. :  Lord  Cranworth,  page  595,  was  strongly  inclined  to 
agree  in  that,  though  Lord  Wensleydale  was  of  a  different  opinion. 
Crompton,  J. :  The  loss  of  consortium  of  the  wife  has  always  been 
considered  a  temporal  damage  in  an  action  by  the  husband  for  crim- 
inal conversation.]  In  the  present  case  there  is  a  loss  of  something 
more  than  consortium  vicinorum.  The  wife  was  a  member  of  a  re- 
ligious society  and  congregation,  and  as  such  entitled  to  a  seat  in  the 
chapel  belonging  to  that  society  and  congregation ;  but,  in  consequence 


GENERAL  PRINCIPLES.  63 

of  the  words  spoken  by  the  defendant,' she  was  turned  out  of  it.  [Mc- 
Intyre :  It  is  not  alleged  that  she  was  entitled  to  a  seat  in  the  chapel 
without  payment.  Blackburn,  J. :  Unless  she  has  been  deprived  of 
something  of  pecuniary  value,  it  is  difficult  to  distinguish  the  present 
case  from  that  of  slander  of  a  chaste  unmarried  woman.]  The  court 
will  not  extend  that  doctrine.  Value  is  attached  to  social  advantages 
and  position,  of  which  the  court  will  take  notice.  The  wife  had  a 
status  as  member  of  the  society  and  congregation,  which  she  has  lost. 
[Cockburn,  C.  J. :  She  had  no  other  benefit  from  it  except  attending 
a  congregational  place  of  worship,  and  she  may  get  that  benefit  whether 
she  attends  as  a  member  of  the  society  or  not.]  A  right  to  a  seat  in 
a  church  or  chapel  is  an  advantage  of  which  the  law  will  take  notice. 
The  reason  why  the  loss  of  consortium  vicinorum  is  not  sufficient 
special  damage  is  that  the  most  capricious  motives  may  deprive  a  per- 
son of  it.  Com.  Dig.,  "Action  upon  the  Case  for  Defamation,"  D.  30. 

COCKBURN,  C.  J.  No  cause  of  action  is  shown  in  this  declara- 
tion, as  it  does  not  allege  special  damage  sufficient  to  make  the  words 
spoken  of  the  female  plaintiff  actionable.  It  is  admitted  that  the  loss 
of  consortium  vicinorum  is  not  sufficient;  and  I  am  of  opinion  that 
the  loss  by  the  female  plaintiff  of  membership  of  this  society  and  con- 
gregation, which  appears  to  have  been  constituted  for  religious  or 
spiritual  purposes,  amounts  at  most  to  no  more  than  the  loss  of  the 
merely  nominal  distinction  of  being  able  to  call  herself  a  member  of 
it.  It  does  not  appear  that  any  real  or  material  advantages  attach  to 
membership ; .  such  as  loss  of  seat  in  the  chapel,  or  of  the  opportunity 
of  attending  divine  worship  there.  If,  by  reason  of  the  words  spoken, 
the  female  plaintiff  had  been  excluded  from  the  meetings  for  religious 
worship,  or  from  anything  substantial  which  by  right  attached  to 
membership  of  the  society,  I  should  be  disposed  to  hold  that  it  was 
sufficient  special  damage.  I  think  that  to  prevent  a  woman  whose 
character  for  chastity  is  assailed  from  bringing  an  action  for  the  pur- 
pose of  vindicating  it  is  cruel ;  but,  as  the  law  at  present  stands,  such 
an  action  is  not  maintainable,  unless  it  be  shown  that  the  loss  of  some 
substantial  or  material  advantage  has  resulted  from  the  speaking  of 
the  words.  That  is  not  shown  in  this  declaration,  and  therefore  I 
reluctantly  hold  that  the  demurrer  is  good.  If,  upon  further  inquiry, 
anything  can  be  found  amounting  to  such  special  damage  as  the  law 
requires,  the  plaintiffs  may  have  leave  to  amend  their  declaration. 

CROMPTON,  J.  On  the  last  observation  made  by  the  lord  chief 
justice  I  wish  to  remark  that  the  amendment  should  be  immediate, 
so  that  the  cause  may  be  tried  at  the  coming  assizes.  I  agree  that 
the  present  case  falls  within  the  rule  that  the  loss  of  consortium 
vicinorum  is  not  sufficient  special  damage.  Here  is  no  loss  of  a  tem- 
poral nature;  or,  if  there  be  any,  it  is  merely  nominal.  Though  I 
wish  the  law  were  different  in  the  case  of  words  affecting  the  chastity 
of  women,  yet  the  line  must  be  drawn  somewhere  between  words 


64  LAW  OF  TORTS. 

which  are  and  words  which  are  not  actionable;  and,  if  we  held  that 
the  action  for  slander  could  be  supported  by  the  allegation  that  the 
plaintiff  had  suffered  some  nominal  special  damage,  we  must  apply 
that  doctrine  to  all  kinds  of  less  disparaging  words,  and  should  there- 
by encourage  actions  which  ought  not  to  be  brought,  as  for  saying 
that  a  person  did  some  disreputable  act,  though  not  essentially  crim- 
inal. My  only  doubt  is  whether  the  being  prevented  from  attending 
religious  worship  is  sufficient  special  damage;  but,  if  it  was  conducted 
in  a  chapel,  the  female  plaintiff  could  not  be  prevented  from  attend- 
ing and  occupying  a  seat  there,  especially  if  she  paid  for  her  seat. 
We  do  not,  however,  know  how  that  is;  it  is  not  even  stated  that  this 
society  had  a  chapel.  The  special  damage  alleged  is  of  a  nominal 
nature,  and  therefore  our  judgment  must  be  for  the  defendant 

BLACKBURN,  J.  The  law  upon  the  subject  of  disparaging  words 
spoken  of  other  persons  is  not  in  a  satisfactory  state.  For  words 
written  an  action  is  maintainable,  though  possibly  not  more  than  one 
farthing  damages  could  be  obtained;  whereas  for  words  spoken  im- 
puting unchastity  to  a  woman  no  action  can  be  maintained  unless  spe- 
cial damage  is' shown,  for  which  purpose  there  must  be  material  in- 
jury to  the  interest  of  the  person  slandered.  What  is  here  alleged  is 
no  more  than  loss  of  the  consortium  vicinorum. 

Judgment  for  the  defendant. 

(The  rule  of  the  common  law,  as  declared  in  this  case,  that  an  action  will  not 
lie  for  spoken  words  imputing  unchastity  to  a  woman,  unless  there  be  proof  of 
special  damage  of  a  pecuniary  nature,  has  been  changed  by  statute  in  many 
states  of  this  country.) 


(El.,  Bl.  &  El.  622.) 

BONOMI  et  ux.  v.  BACKHOUSE  (in  part). 
(Court  of  Queen's  Bench.    June  7,  1858.) 

LATERAL  SUPPORT  OF  LAND— INJURY  BY  WORKING  MINES— CAUSE  OF  ACTION 
ACCRUES  WHEN  DAMAGE  RESULTS. 

Plaintiff  was  owner  of  the  reversion  of  an  ancient  house,  and  defend- 
ant, more  than  six  years  before  action  brought,  worked  some  coal  mines 
on  his  own  land  at  280  yards  distance  from  the  house.  This  excavation 
caused  damage  to  plaintiff's  house,  but  this  damage  did  not  result  until 
within  six  years  of  action  brought 

Held,  that  no  cause  of  action  accrued  for  the  mere  excavation  by  the 
defendant  in  his  own  land,  so  long  as  it  caused  no  damage  to  the  plain- 
tiff, and  that  the  cause  of  action  did  accrue  when  the  actual  damage 
first  occurred;  hence,  that  the  action  was  not  barred  by  the  statute  of 
limitations. 

WILLES,  J.  The  question  argued  before  us  may  be  stated  in  a 
very  few  words.  The  plaintiff  was  owner  of  the  reversion  of  an 
ancient  house.  The  defendant,  more  than  six  years  before  the  com- 


GENERAL   PRINCIPLES.  65 

mencement  of  the  action,  worked  some  coal  mines  280  yards  distant 
from  it.  No  actual  damage  occurred  until  within  the  six  years. 

Question.  Is  the  statute  of  limitations  an  answer  to  the  action? 
Or,  in  other  words,  did  the  cause  of  action  accrue  within  the  six  years  ? 

There  is  no  doubt  that  for  an  injury  to  a  right  an  action  lies ;  but 
the  question  is,  what  is  the  plaintiff's  right?  Is  it  that  his  land 
should  remain  in  its  natural  state,  unaffected  by  any  act  done  in  the 
neighboring  land,  or  is  it  that  nothing  should  be  done  in  the  neigh- 
boring land  from  which  a  jury  would  find  that  damage  might  pos- 
sibly accrue?  There  is  no  doubt  that  in  certain  cases  an  action  may 
be  maintained,  although  there  is  no  actual  damage.  The  rule  laid 
down  by  Sergeant  Williams  in  note  2  to  Mellor  v.  Spateman,  I  Wm. 
Saund.  346b,  is  that  whenever  an  act  injures  another's  right,  and 
would  be  evidence  in  future  in  favor  of  the  wrongdoer,  an  action 
may  be  maintained  for  an  invasion  of  the  right,  without  proof  of  any 
specific  damage.  This  is  a  reasonable  and  sensible  rule;  but  it  has 
no  application  to  the  present  case,  for  the  act  of  the  defendant  in 
getting  the  coal  would  be  no  evidence  in  his  favor  as  to  any  future 
act.  Getting  the  coal  was  an  act  done  by  him  in  his  own  soil  by 
virtue  of  his  dominion  over  it.  If  the  question  were  unaffected  by 
decision,  we  cannot  but  think  that  the  contention  on  the  part  of  the 
plaintiffs  in  error  is  correct:  That  on  behalf  of  the  defendant  is  that 
the  action  must  be  brought  within  six  years  after  the  excavation 
is  made,  and  that  it  is  immaterial  whether  any  actual  damage  has 
occurred  or  not.  The  jury,  according  to  this  view,  would  have,  there- 
fore, to  decide  upon  the  speculative  question  whether  any  damage 
was  likely  to  arise;  and  it  might  well  be  that  in  many  cases  they 
would,  upon  the  evidence  of  mineral  surveyors  and  engineers,  find 
that  no  damage  was  likely  to  occur  when  the  most  serious  injury 
afterwards  might  in  fact  occur,  and  in  others  find  and  give  large 
sums  of  money  for  apprehended  damage  which  in  point  of  fact  never 
might  arise.  This  is  certainly  not  a  state  of  the  law  to  be  desired. 
On  the  other  hand,  the  plaintiffs  in  error  rely  upon  the  ordinary 
rule  that  damnum  and  injuria  must  concur  to  confer  a  right  of  action, 
and  that,  although  only  one  action  could  be  maintained  for  damage 
in  respect  of  such  a  claim,  nevertheless  it  would  be  essential  that 
some  damage  should  have  happened  before  a  defendant  was  made 
liable  for  an  act  done  in  his  own  land.  Actions  upon  contract  and 
actions  of  trespass  for  direct  injuries  to  the  land  of  another  are 
clearly  distinguishable. 

We  are  not  insensible  to  the  consideration  that  the  holding  dam- 
age to  be  essential  to  the  cause  of  action  may  extend  the  time  dur- 
ing which  persons  working  minerals  and  making  excavations  may 
be  made  responsible ;  but  we  think  that  the  right  which  a  man 
has  is  to  enjoy  his  own  land  in  the  state  and  condition  in  which  nature 
has  placed  it,  and  also  to  use  it  in  such  manner  as  he  thinks  fit,  sub- 
ject always  to  this :  that,  if  his  mode  of  using  it  does  damage  to  his 
neighbor,  he  must  make  compensation.  Applying  these  two  princi- 
CHASE  (2o  ED.) — 5 


|J(j  LAW  OF  TORTS. 

pies  to  the  present  case,  we  think  that  no  cause  of  action  accrued  for 
the  mere  excavation  by  the  defendant  in  his  own  land,  so  long  as 
it  caused  no  damage  to  the  plaintiff,  and  that  the  cause  of  action  did 
accrue  when  the  actual  damage  first  occurred. 

The  judgment  must  therefore  be  reversed,  and  judgment  given 
for  the  plaintiffs.     Judgment  reversed. 

(This  decision  was  affirmed  by  the  House  of  Lords,  9  H.  L.  Cases,  503.    To 
the  same  effect  is  Ludlow  v.  Hudson  Riv.  R.  Co.,  6  Lans.  [N.  Y.]  128.) 


(6  111.  App.  243.) 

CHICAGO  WEST.  DIV.  RY.  CO.  v.  REND  et  al.  (extract  from). 
(Appellate  Court  of  Illinois.    April  27,  1880.) 

1.  TOBT— DISTINCT  LEGAL  WRONG — PRESUMPTION  OF  DAMAGE. 

Where  there  is  a  distinct  legal  wrong,  which  in  itself  constitutes  an 
Invasion  of  the  right  of  another,  the  law  will  presume  that  damage  fol- 
lows as  the  proximate  result,  and  nothing  further  is  necessary  to  a  re- 
covery. 

2.  SAME— CASES  OF  NEGLIGENCE,  ETC.— DAMAGE  MUST  BE  PROVED. 

Where  the  act  or  omission  complained  of  is  not  of  itself  a  distinct 
wrong,  as  in  cases  of  negligence,  damage  must  be  proved  to  sustain  an 
action. 

Appeal  from  Circuit  Court,  Cook  County;  Thomas  A.  Moran, 
Judge. 

Action  by  the  Chicago  West  Division  Railway  Company  against 
William  P.  Rend  and  another.  From  a  judgment  sustaining  a  gen- 
eral demurrer  to  the  declaration,  plaintiff  appeals.  Reversed. 

The  declaration  alleged  that  the  defendants  negligently  drove  against 
the  plaintiff's  car,  and  caused  an  injury  to  one  of  its  passengers,  who 
recovered  a  judgment  therefor  against  it,  which  it  was  compelled  to 
pay.  The  plaintiff  seeks  to  recover  over  from  the  defendants  the 
amount  so  paid. 

McALLISTER,  J.  There  are  two  classes  of  cases  of  wrongful 
acts  or  omissions  between  which  there  is  a  marked  distinction. 
One  is  that  where  there  is  any  distinct  legal  wrong,  which  in  it- 
self constitutes  the  invasion  of  the  right  of  another,  the  law  will 
presume  that  some  damage  follows  as  a  natural,  necessary,  and  prox- 
imate result.  In  that  case  the  wrong  itself  constitutes  the  right  of 
action.  Nothing  further  is  necessary  to  a  recovery,  though  the  extent 
of  it  may  depend  upon  the  evidence.  Cooley  on  Torts,  69;  Mc- 
Connel  v.  Kibbe,  33  111.  179,  85  Am.  Dec.  265;  Sedg.  on  Dam.  445; 
Brent  v.  Kimball,  60  111.  211,  14  Am.  Rep.  35. 

The  latter  class  is  where  the  act  or  omission  complained  of  is  not 
of  itself  a  distinct  wrong,  and  can  only  become  so  to  any  particular 


GENEKAL   PRINCIPLES.  67 

individual  through  injurious  consequences  resulting  therefrom.  In 
such  case  this  consequence  must  not  only  be  shown,  but  it  must  be 
so  connected  by  averment  and  evidence  with  the  act  or  omission  as 
to  appear  to  have  resulted  therefrom  according  to  the  ordinary  course 
of  events,  and  as  a  proximate  result  of  a  sufficient  cause.  Cooley  on 
Torts,  supra,  and  cases  in  note  I.  An  instance  of  this  class  is  where 
suit  is  brought  against  the  cashier  of  a  bank  for  neglect  of  duty.  If 
no  damage  has  resulted  to  plaintiff,  then,  although  the  neglect  be 
proved,  the  plaintiff  cannot  even  recover  nominal  damages.  Com- 
mercial Bank  v.  Ten  Eyck,  48  N.  Y.  305.  Another  is  where  suit  is 
brought  for  verbal  slander,  where  the  words  are  not  actionable  per  se, 
but  become  so  only  by  averring  and  proving  special  damages,  as  in 
Vickars  v.  Wilcocks,  8  East,  I.  In  such  cases  the  damages  are  said 
to  be  the  gist  of  the  action.  Bare  negligence,  unproductive  of  dam- 
ages to  another,  will  not  give  a  right  of  action ;  negligence  causing 
damages  will  do  so.  Whitehouse  v.  Birmingham  Can.  Co.,  2  L.  .T-. 
Exc.  25 ;  Bailey  v.  Wolverham  Waterworks,  6  H.  &  N.  241 ;  Duck- 
worth v.  Johnson,  4  H.  &  N.  653. 

(The  following  cases  also  sustain  the  doctrine  that  an  action  is  not  main- 
tainable for  negligence,  unless  it  causes  detriment  or  injury  to  the  plaintiff : 
Harter  v.  Morris,  18  Ohio  St.  493  [action  by  client  against  his  attorney  for 
negligence] ;  Hinckley  v.  Krug  [Cal.]  34  Pac.  118  [Id.] ;  McAllister  v.  Cle- 
ment, 75  Cal.  182,  16  Pac.  775  [action  against  notary  for  neglect  in  taking 
acknowledgment  to  a  mortgage] ;  Joy  v.  Morgan,  35  Minn.  184,  28  N.  W.  237 
[action  for  negligence  in  filing  mechanic's  lien  papers] ;  Clay  v.  Western 
Union  Tel.  Co.,  81  Ga.  285,  6  S.  E.  813,  12  Am.  St  Rep.  316  [negligent  failure 
to  deliver  a  telegram] ;  111.  Cent.  R.  Co.  v.  Benton,  69  111.  174  [negligence  of 
railroad  company  in  sounding  whistle  or  bell  at  crossings,  as  statute  requires]. 
"It  is  the  consequences  of  negligence,"  it  has  been  said,  "not  the  abstract 
existence  of  it,  for  which  a  defendant  is  answerable."  Hart  v.  Allen,  2  Watts 
[Pa.]  114.  "Negligence  without  results  is  never  actionable."  Christuer  v. 
Coal  Co.,  146  Pa.  67,  71,  23  Atl.  221;  Conway  v.  Horse  R.  Co.,  90  Me.  199, 
38  Atl.  110;  Bluedorn  v.  Mo.  Pac.  R.  Co.  [Mo.]  24  S.  W.  57,  60;  Smith  v. 
Leavenworth,  15  Kan.  81;  Harlan  v.  St  Louis,  etc.,  R.  Co.,  65  Mo.  22;  Scott 
v.  Nat  Bk.,  72  Pa.  471,  13  Am.  Rep.  711.) 


(148  N.  Y.  640,  43  N.  E.  76.) 

BUCHHOLZ  v.  NEW  YORK,  L.  E.  &  W.  R.  CO.  (in  part;. 
(Court  of  Appeals  of  New  York.     March  3,  1896.) 

PUBLIC  NUISANCE— SPECIAL  DAMAGE  OCCASIONED  THEREBY  GIVES  CAUSE  OF 
ACTION  TO  INDIVIDUAL. 

Where  defendant,  a  railroad  company,  unlawfully  built  a  fence  across 
a  public  highway  on  which  plaintiff's  hotel  property  was  situated,  and 
opened  a  new  way  at  some  distance  off  for  travelers  to  use  in  reaching 
the  main  road  again,  whereby  travel  was  diverted  from  plaintiff's  prem- 
ises and  his  business  as  a  hotel  keeper  was  seriously  interrupted,  held? 
that  the  defendant,  by  obstructing  the  highway,  had  caused  a  public 


fjg  LAW  OF  TORTS. 

nuisance,  and  that  the  loss  and  detriment  occasioned  to  the  plaintiff  was 
'        a  special  injury  to  him,  for  which  he  might  maintain  an  action  for  dam- 
ages and  for  an  injunction. 

Appeal  from  Supreme  Court,  General  Term,  Second  Department. 
The  facts,  so  far  as  material,  are  stated  in  the  opinion. 

ANDREWS,  C.  J.  Main  street,  in  the  village  of  Port  Jervis,  as  it 
existed  prior  to  March,  1890,  ran  in  a  northerly  and  southerly  direc- 
tion, passing  the  plaintiff's  premises,  upon  which  for  many  years  had 
been  erected"  a  hotel  and  barns,  used  by  him  for  hotel  purposes.  The 
plaintiff's  lot  adjoined  lands  of  the  defendant  on  the  north,  and,  up 
to  the  date  mentioned,  the  tracks' of  the  defendant  crossed  Main  street 
at  grade  on  its  own  premises,  50  feet  or  more  north  of  the  north  line 
of  the  plaintiff's  lot.  In  March,  1890,  the  defendant  constructed  a 
bridge  over  its  tracks,  100  feet  east  of  the  grade  crossing,  and  con- 
nected it  with  Main  street,  north  of  the  plaintiff's  lot,  and  an  approach 
thereto  on  the  south  from  Main  street,  100  feet  or  more  south  of  the 
plaintiff's  premises,  and  at  the  same  time  took  up  the  planking  at  the 
grade  crossing,  and  built  a  fence  across  Main  street  north  of  plain- 
tiff's lot,  where  the  bridge  connected  with  the  street.  By  these  acts 
of  defendant  the  travel  on  Main  street  in  front  of  plaintiff's  premises 
was  diverted  to  the  new  way  across  the  bridge.  It  left  the  plaintiff's 
hotel  and  premises  on  a  spur  of  Main  street,  closed  at  the  north,  or 
on  what  was,  after  the  change,  practically  a  lane,  starting  from  the 
point  loo  feet  south  where  the  new  way  diverged  from  Main  street. 
It  was  found  that  the  plaintiff,  by  reason  of  the  interference  with 
Main  street,  sustained  special  damage,  and  the  facts  proved  in  con- 
nection with  the  use  to  which  the  plaintiff's  premises  were  devoted 
amply  justify  the  finding.  But  the  trial  court  refused  relief,  on  the 
ground  that,  under  the  circumstances,  the  plaintiff  had  suffered  no 
injury  to  his  property  for  which  he  was  entitled  either  to  damages 
or  an  injunction. 

There  can  be  no  doubt  of  the  general  proposition  that  an  unlawful 
obstruction  of  a  public  highway,  by  an  individual  or  corporation,  con- 
stitutes a  public  nuisance,  and  subjects  the  party  who  created  or  main- 
tains it  to  an  indictment,  and  to  a  proceeding  for  its  abatement  in 
behalf  of  the  public.  But  the  public  remedy  is  not,  in  all  cases,  ex- 
clusive. An  individual  who  has  suffered  special  injury  from  the  nui- 
sance, not  common  to  the  whole  public,  may  maintain  a  private  action 
against  the  author  of  the  injury  for  damages,  and  in  a  proper  case 
may  invoke  the  jurisdiction  in  equity  to  restrain  its  continuance.  The 
equitable  jurisdiction  attaches  when  the  legal  remedy  is  inadequate, 
either  because  the  damages  are  such  that  they  cannot  be  measured  by 
a  money  standard,  with  any  certainty,  or  where  they  are  continuous, 
and  multiplicity  of  suits  would  be  likely  to  result  if  the  remedy  was 
confined  to  proceedings  at  law.  The  injury  suffered  by  the  plaintiff 
in  this  case  from  the  change  in  and  obstruction  of  the  street,  whereby 
travel  was  diverted  from  his  premises,  and  his  business  as  an  hotel 


GENERAL  PRINCIPLES.  69 

keeper  seriously  interrupted,  made  a  case  for  equitable  interposition, 
and  for  the  recovery  of  damages,  within  the  cases  in  this  state,  as- 
suming that  the  defendant's  acts  were  unlawful.  Adams  v.  Popham, 
76  N.  Y.  410;  Callanan  v.  Gilman,  107  N.  Y.  360,  14  N.  E.  264,  I 
Am.  St.  Rep.  831 ;  Flynn  v.  Taylor,  127  N.  Y.  596,  28  N.  E.  418,  14 
L.  R.  A.  556.  See,  also,  Story,  Eq.  Jur.  §  926  et  seq. 

We  think  the  judgment  should  be  reversed  and  a  new  trial  ordered. 
All  concur.  Judgment  reversed. 

(This  doctrine  in  regard  to  public  nuisances  is  well  established.  Wakeman 
v.  Wilbur,  147  N.  Y.  657,  42  N.  E.  341 ;  Knowles  v.  Pa.  R.  Co.,  175  Pa.  623,  34 
Atl.  974,  52  Am.  St  Rep.  860 ;  Houck  v.  Wachter,  34  Md.  265,  6  Am.  Rep.  332 ; 
Wintcrbottom  v.  Lord  Derby,  L.  R.  2  Ex.  316 ;  O'Brien  v.  Central  Iron  Co.,  158 
Ind.  218,  63  N.  E.  302,  57  L.  R.  A.  508,  92  Am.  St.  Rep.  305 ;  Jones  v.  City  of 
Chanute,  63  Kan.  243,  65  Pac.  243 ;  Van  Wegenen  v.  Cooney,  45  N.  J.  Eq.  25,  16 
Atl.  689.  The  "special  damage"  which  the  individual  must  suffer  from  the 
public  nuisance  must  be,  it  is  held,  "different  in  kind,  and  not  merely  in  degree 
or  extent,  from  that  which  the  general  public  suffers  from  the  same  cause." 
But  though  the  authorities  agree  upon  this  rule,  they  differ  much  in  their  ap 
plication  of  it.  Brayton  v.  Fall  River,  113  Mass.  218,  18  Am.  Rep.  470;  Chi 
cago  v.  Union  Bldg.  Ass'n,  102  111.  379,  40  Am.  Rep.  598 ;  Atwood  v.  Partree,  56 
Conn.  80,  14  Atl.  85 ;  Knowles  v.  Pa.  R.  Co.,  supra ;  Lansing  v.  Smith,  8  Cow. 
146 ;  Id.,  4  Wend.  9,  21  Am.  Dec.  89.) 


(122  Mass.  235,  23  Am.  Rep.  322.) 

GOTT  v.  PULSIFER  et  al.  (in  part). 

(Supreme  Judicial  Court  of  Massachusetts.    Suffolk.    March  7,  1877.) 

1.  MALICE— FALSEHOODS  ABOUT  PROPERTY— SPECIAL  DAMAGE. 

An  action  for  publishing  a  false  and  malicious  statement,  disparaging 
the  plaintiff's  property,  cannot  be  maintained  without  allegation  and 
proof  of  special  damage. 

2.  SAME — EVIDENCE. 

Where  the  special  damage  alleged  to  have  resulted  from  a  false  publi- 
cation concerning  a  statue  was  the  loss  of  its  sale  to  a  certain  person, 
evidence  of  its  value  as  a  scientific  curiosity  or  for  purposes  of  exhibition 
was  immaterial. 

8.  SAME— EVIDENCE  OF  MALICE. 

Though  a  newspaper  is  not  liable  for  the  publication  of  comments  on 
a  statue  which  has  been  made  a  subject  of  public  exhibition,  without  proof 
of  actual  malice,  it  is  not  necessary  that  there  should  be  direct  proof  of 
an  intention  to  injure  the  value  of  the  property ;  such  intention  being 
inferable  from  false  statements,  exceeding  the  limits  of  fair  criticism,  or 
recklessly  uttered  in  disregard  of  the  rights  of  the  owner. 

Action  by  Calvin  O.  Gott  against  R.  M.  Pulsifer  and  others.  Ver- 
dict for  defendants,  and  plaintiff  excepts.  Exceptions  sustained. 

The  declaration  alleged  that  the  plaintiff  owned  a  colossal  statue 
of  great  value,  known  as  the  "Cardiff  Giant" ;  that  the  defendants 
had  published  a  false  statement  that  it  had  been  sold  at  New  Orleans 


70  LAW  OF  TORTS. 

for  $8,  referring  to  it  as  a  sell,  a  humbug,  and  a  fraud ;  and  that  it 
had  not  been  sold,  but  that  plaintiff  by  such  publication  had  lost 
Ihe  sale  of  the  statue  for  $30,000. 

GRAY,  C.  J.  This  action  is  not  for  a  libel  upon  the  plaintiff,  but 
for  publishing  a  false  and-,  malicious  statement  concerning  his  prop- 
erty, and  could  not  be  supported  without  allegation  and  proof  of 
special  damage.  Malachy  v.  Soper,  3  Bing.  N.  C.  371 ;  S.  C.  3  Scott, 
723 ;  Swan  v.  Tappan,  5  Cush.  104.  The  special  damage  alleged  was 
the  loss  of  the  sale  of  the  plaintiff  s  statue  to  Palmer.  Evidence  of 
the  value  of  the  statue  as  a  scientific  curiosity  or  for  purposes  of 
exhibition  was  therefore  rightly  rejected  as  immaterial. 

The  editor  of  a  newspaper  has  the  right,  if  not  the  duty,  of  pub- 
lishing, for  the  information  of  the  public,  fair  and  reasonable  com- 
ments, however  severe  in  terms,  upon  anything  which  is  made  by  its 
owner  a  subject  of  public  exhibition,  as  upon  any  other  matter  of 
public  interest,  and  such  a  publication  falls  within  the  class  of  privi- 
leged communications  for  which  no  action  can  be  maintained  with- 
out proof  of  actual  malice.  Dibdin  v.  Swan,  i  Esp.  28;  Carr  v. 
Hood,  I  Campb.  355 ;  Kenwood  v.  Harrison,  L.  R.  7  C.  P.  606. 

But,  in  order  to  constitute  such  malice,  it  is  not  necessary  that 
there  should  be  direct  proof  of  an  intention  to  injure  the  value  of 
the  property.  Such  an  intention  may  be  inferred  by  the  jury  from 
false  statements,  exceeding  the  limits  of  fair  and  reasonable  criti- 
cism, and  recklessly  uttered  in  disregard  of  the  rights  of  those  who 
might  be  affected  by  them.  Malice  in  uttering  false  statements  may 
consist  either  in  a  direct  intention  to  injure  another,  or  in  a  reck- 
less disregard  of  his  rights  and  of  the  consequences  that  may  result 
to  him.  Commonwealth  v.  Bonner,  9  Mete.  410;  Moore  v.  Steven- 
son, 27  Conn.  14 ;  Erie,  C.  J.,  in  Hibbs  v.  Wilkinson,  I  F.  &  F.  608, 
610,  and  in  Paris  v.  Levy,  2  F.  &  F.  71,  74,  and  9  C.  B.  (N.  S.)  342, 
350;  Cockburn,  C.  J.,  in  Morrison  v.  Belcher,  3  F.  &  F.  614,  620, 
in  Heclley  v.  Barlow,  4  F.  &  F.  224,  231,  and  in  Strauss  v.  Francis, 
4  F.  &  F.  1107,  1114. 

The  only  definition  of  malice  given  by  the  learned  judge  who  pre- 
sided at  the  trial  was  therefore  erroneous,  because  it  required  the 
plaintiff  to  prove  "a  disposition  willfully  and  purposely  to  injure  the 
value  of  this  statue,"  as  well  as  "wanton  disregard  of  the  interest  of 
the  owner."  The  jury  upon  the  evidence  before  them,  and  under 
the  instructions  given  them,  may  have  been  of  opinion  that  the  de- 
fendants' statements  that  the  plaintiff's  statue  was  an  "ingenious 
humbug,"  "a  sell,"  and  "a  fraud,"  were  false,  reckless,  and  unjusti- 
fiable, and  had  the  effect  of  injuring  the  plaintiff's  property,  and 
caused  him  special  damage,  and  may  have  returned  their  verdict  for 
the  defendants  solely  because  they  were  not  convinced  that  they 
intended  such  injury. 

The  ninth  request  for  instructions  distinctly  called  the  attention 
of  the  court  to  the  necessity  of  a  definition  of  the  legal  meaning  of 


GENERAL   PRINCIPLES.  71 

malice  in  this  respect.  As  the  instructions  given  were  erroneous 
in  this  particular,  and  we  cannot  know  that  the  error  did  not  affect 
the  verdict,  the  plaintiff  is  entitled  to  a  new  trial,  in  order  that  he 
may  satisfy  a  jury,  if  he  can,  under  proper  instructions,  that  he  has 
a  good  cause  of  action  against  the  'defendants. 
Exceptions  sustained. 

(There  are  various  classes  of  eases  wherein  malice,  by  words  or  acts,  Is  ac- 
tionable, provided  it  causes  special  damage ;  as,  e.  g.,  [a]  in  cases  of  malicious 
disparagement  of  property  [as  in  the  principal  case,  supra],  or  of  title  to  prop- 
erty. Dooling  v.  Budget  Pub.  Co.,  144  Mass.  258,  10  N.  B.  809,  59  Am.  Rep. 
83,  and  cases  cited ;  Marlin  Fire  Arms  Co.  v.  Shields,  171  N.  Y.  384,  390,  64 
N.  E.  163;  Wilson  v.  Dubois,  35  Minn.  471,  29  N.  W.  68,  59  Am.  Rep.  335; 
Malachy  v.  Soper,  8  Bing.  N.  C.  371 ;  [b]  malicious  acts  or  malicious  conspira- 
cies [followed  by  acts  in  pursuance  thereof]  to  injure  a  man  in  his  trade  or 
business,  outside  the  bounds  of  legitimate  competition.  Quinn  v.  Leatham 
(1901)  A.  C.  495 ;  Mogul  Stshp.  Co.  v.  McGregor,  L.  R.  23  Q.  B.  D.  598,  614, 
(1892)  A.  C.  25 ;  Walker  v.  Cronin,  107  Mass.  564 ;  Barr  v.  Essex  Trades  Coun- 
cil, 53  N.  J.  Eq.  101,  30  Atl.  881 ;  Aldridge  v.  Stuyvesant,  1  Hall  (N.  Y.)  210 ; 
Lucke  v.  Clothing  Cutters'  Assembly,  77  Md.  396,  26  Atl.  505,  19  L.  R.  A.  408, 
39  Am.  St.  Rep.  421 ;  Smith  v.  Nippert,  76  Wis.  86,  44  N.  W.  846,  20  Am.  St 
Rep.  26;  Burton  v.  Fulton,  49  Pa.  151.  But  the  malicious  exercise  of  a 
definite  legal  right  is  not  actionable,  though  it  does  result  in  damage  to  another. 
Stevenson  v.  Newnham,  13  C.  B.  297 ;  Allen  v.  Flood  [1898]  A.  C.  1 ;  Heywood 
v.  Tillson,  75  Me.  225,  46  Am.  Rep.  373;  Raycroft  v.  Tayntor,  68  Vt.  219,  35 
Atl.  53,  33  L.  R.  A.  225,  54  Am.  St  Rep.  882 ;  Walker  v.  Cronin,  107  Mass.,  at 
page  5G4  ;  Kiff  v.  Youmans,  86  N.  Y.  324,  40  Am.  Rep.  543  ;  McCune  v.  Norwich 
Gas  Co.,  30  Conn.  521,  79  Am.  Dec.  278 ;  Smith  v.  Johnson,  76  Pa.  191. 

As  to  maliciously  inducing  a  man  to  break  a  contract  with  a  third  person, 
see  post,  p.  lie.) 


(3  Term  R.  51.) 

PASLEY  et  al.  v.  FREEMAN  (In  part). 
(Hilary  Term,  1789.) 

DECEIT— ELEMENTS  OF  ACTION— DAMAGE. 

Where  defendant,  to  induce  plaintiffs  to  sell  goods  to  a  certain  person, 
represented  that  he  was  a  person  safely  to  be  trusted,  knowing  this  to  be 
false  and  intending  to  deceive  and  defraud  plaintiffs,  and  they,  relying 
on  and  believing  his  representations,  sold  the  goods  on  credit  as  desired, 
and  were  unable  to  collect  therefor  from  the  purchaser  and  wholly  lost 
the  goods  and  their  value,  defendant  is  liable  for  the  deceit,  though  he 
had  no  interest  in  the  sale,  and  had  not  colluded  with  any  person  who 
had  such  an  interest.  The  gist  of  the  action  is  the  injury  done  to  the 
plaintiff,  not  whether  the  defendant  meant  to  be  a  gainer  by  it  Fraud 
without  damage,  or  damage  without  fraud,  will  not  found  an  action ;  but, 
where  both  concur,  an  action  will  lie. 

This  was  an  action  in  the  nature  of  a  writ  of  deceit,  to  which  the 
defendant  pleaded  the  general  issue.  And  after  a  verdict  for  the 
plaintiffs  on  the  third  count,  a  motion  was  made  in  arrest  of  judg- 
ment. 


72  LAW  OF  TORTS. 

The  third  count  was  as  follows :  "And  whereas  also  the  said  Joseph 
Freeman,  afterwards,  to  wit  on  the  21  st  day  of  February  in  the  year 
of  our  Lord  1787,  at  London  aforesaid,  in  the  parish  and  ward 
aforesaid,  further  intending  to  deceive  and  defraud  the  said  John 
Pasley  and  Edward,  did  wrongfully  and  deceitfully  encourage  and 
persuade  the  said  John  Pasley  and  Edward,  to  sell  and  deliver  to 
the  said  John  Christopher  Falch  divers  other  goods,  wares  and  mer- 
chandizes, to  wit,  16  other  bags  of  cochineal  of  great  value,  to  wit, 
of  the  value  of  ^2634.  i6s.  id.  upon  trust  and  credit;  and  did  for  that 
purpose  then  and  there  falsely,  deceitfully,  and  fraudulently,  assert, 
and  affirm,  to  the  said  John  Pasley  and  Edward,  that  the  said  John 
Christopher  then  and  there  was  a  person  safely  to  be  trusted  and 
given  credit  to  in  that  respect,  and  did  thereby  falsely,  fraudulently, 
and  deceitfully,  cause  and  procure  the  said  John  Pasley  and  Edwaod 
to  sell  and  deliver  the  said  last  mentioned  goods,  wares,  and  mer- 
chandizes upon  trust  and  credit  to  the  said  John  Christopher ;  and  in 
fact  they  the  said  John  Pasley  and  Edward,  confiding  in  and  giving 
credit  to  the  said  last  mentioned  assertion  and  affirmation  of  the 
said  Joseph,  and  believing  the  same  to  be  true,  and  not  knowing 
the  contrary  thereof,  did  afterwards,  to  wit,  on  the  28th  day  of  Feb- 
ruary in  the  year  of  our  Lord  1787,  at  London  aforesaid,  in  the  parish 
and  ward  aforesaid,  sell  and  deliver  the  said  last  mentioned  goods, 
wares,  and  merchandizes,  upon  trust  and  credit  to  the  said  John 
Christopher;  whereas  in  truth  and  in  fact  at  the  time  of  the  said 
Joseph's  making  his  said  last  mentioned  assertion  and  affirmation, 
the  said  John  Christopher  was  not  then  and  there  a  person  safely  to 
be  trusted  and  given  credit  to  in  that  respect,  and  the  said  Joseph 
well  knew  the  same,  to  wit  at  London  aforesaid,  in  the  parish  and 
ward  aforesaid.  And  the  said  John  Pasley  and  Edward  further  say, 
that  the  said  John  Christopher  hath  not,  nor  hath  any  other  person 
on  his  behalf,  paid  to  the  said  John  Pasley  and  Edward,  or  either 
of  them,  the  said  sum  of  ^2634.  i6s.  id.  last  mentioned,  or  any  part 
thereof,  for  the  said  last  mentioned  goods,  wares,  and  merchandizes ; 
but  on  the  contrary  the  said  John  Christopher  then  was  and  still  is 
wholly  unable  to  pay  the  said  sum  of  money  last  mentioned,  or  any 
part  thereof,  to  the  said  John  Pasley  and  Edward,  to  wit,  at  London 
aforesaid,  in  the  parish  and  ward  aforesaid :  and  the  said  John  Pasley 
and  Edward  aver  that  the  said  Joseph  falsely  and  fraudulently  de- 
ceived them  in  this,  that  at  the  time  of  his  making  his  said  last  men- 
tioned assertion  and  affirmation,  the  said  John  Christopher  was  not 
a  person  safely  to  be  trusted  or  given  credit  to  in  that  respect  as 
aforesaid,  and  the  said  Joseph  then  well  knowing  the  same,  to  wit, 
at  London  aforesaid,  in  the  parish  and  ward  aforesaid ;  by  reason  of 
which  said  last  mentioned  false,  fraudulent,  and  deceitful  assertion  and 
affirmation  of  the  said  Joseph  the  said  John  Pasley  and  Edward  have 
been  deceived  and  imposed  upon,  and  have  wholly  lost  the  said  last 
mentioned  goods,  wares,  and  merchandizes,  and  the  value  thereof, 


GENERAL  PRINCIPLES.  73 

to  wit,  at  London  aforesaid,  in  the  parish  and  ward  aforesaid ;  to  the 
damage,"  etc. 

Application  was  first  made  for  a  new  trial,  which  after  argument 
was  refused ;  and  then  this  motion  in  arrest  of  judgment. 

ASHHURST,  J.  The  objection  in  this  case,  which  is  to  the  third 
count  in  the  declaration,  *is  that  it  contains  only  a  bare  assertion,  and 
does  not  state  that  the  defendant  had  any  interest,  or  that  he  colluded 
with  the  other  party  who  had.  But  I  am  of  opinion  that  the  action 
lies  notwithstanding  this  objection.  It  seems  to  me  that  the  rule  laid 
down  by  Croke,  J.,  in  Baily  v.  Merrell,  3  Bulst.  95,  is  a  sound  and 
solid  principle,  namely,  that  fraud  without  damage ,  or  damage  with- 
out fraud,  will  not  found  an  action;  but  where  both  concur  an  action 
will  lie.  The  principle  is  not  denied  by  the  other  judges,  but  only 
the  application  of  it,  because  the  party  injured  there,  who  was  the 
carrier,  had  the  means  of  attaining  certain  knowledge  in  his  own 
power,  namely,  by  weighing  the  goods ;  and  therefore  it  was  a  fool- 
ish credulity  against  which  the  law  will  not  relieve.  But  that  is  not 
the  case  here,  for  it  is  expressly  charged  that  the  defendant  knew 
the  falsity  of  the  allegation,  and  which  the  jury  have  found  to  be  true : 
but  non  constat  that  the  plaintiffs  knew  it,  or  had  any  means  of  know- 
ing it,  but  trusted  to  the  veracity  of  the  defendant.  And  many  reasons 
may  occur  why  the  defendant  might  know  that  fact  better  than  the 
plaintiffs ;  as  if  there  had  before  this  event  subsisted  a  partnership 
between  him  and  Falch,  which  had  been  dissolved :  but  at  any  rate 
it  is  stated  as  a  fact  that  he  knew  it.  It  is  admitted  that  a  fraudu- 
lent affirmation,  when  the  party  making  it  had  an  interest,  is  a  ground 
of  action,  as  in  Risney  v.  Selby,  I  Salk.  211,  which  was  a  false  affirma- 
tion made  to  a  purchaser  as  to  the  rent  of  a  farm  which  the  de 
fendant  was  in  treaty  to  sell  to  him.  But  it  was  argued  that  the  action 
lies  not,  unless  where  the  party  making  it  has  an  interest,  or  colludes 
with  one  who  has.  I  do  not  recollect  that  any  case  was  cited  which 
proves  such  a  position :  but  if  there  were  any  such  to  be  found,  I 
should  not  hesitate  to  say  that  it  could  not  be  law;  for  I  have  so 
great  a  veneration  for  the  law  as  to  suppose  that  nothing  can  be  law 
which  is  not  founded  in  common  sense  or  common  honesty.  For 
the  gist  of  the  action  is  the  injury  done  to  the  plaintiff,  and  not  wheth- 
er the  defendant  meant  to  be  a  gainer  by  it :  what  is  it  to  the  plaintiff 
whether  the  defendant  was  or  was  not  to  gain  by  it;  the  injury  to 
him  is  the  same.  And  it  should  seem  that  it  ought  more  emphatically 
to  lie  against  him,  as  the  malice  is  more  diabolical,  if  he  had  not  the 
temptation  of  gain.  For  the  same  reason  it  cannot  be  necessary  that 
the  defendant  should  collude  with  one  who  has  an  interest.  But  if 
collusion  were  necessary,  there  seems  all  the  reason  in  the  world 
to  suppose  both  interest  and  collusion  from  the  nature  of  the  act; 
for  it  is  to  be  hoped  that  there  is  not  to  be  found  a  disposition  so  dia- 
bolical as  to  prompt  any  man  to  injure  another  without  benefiting 
himself.  But  it  is  said  that  if  this  be  determined  to  be  law,  any  man 


74  LAW  OF  TORTS. 

may  have  an  action  brought  against  him  for  telling  a  lie,  by  the 
crediting  of  which  another  happens  eventually  to  be  injured.  But 
this  consequence  by  no  means  follows ;  for  in  order  to  make  it  ac- 
lionable  it  must  be  accompanied  with  the  circumstances  averred  in 
this  count,  namely,  that  the  defendant,  "intending  to  deceive  and 
defraud  the  plaintiffs,  did  deceitfully  encourage  and  persuade  them 
to  do  the  act,  and  for  that  purpose  made  the  false  affirmation,  in  con- 
sequence of  which  they  did  the  act."  Any  lie  accompanied  with  those 
circumstances  I  should  clearly  hold  to  be  the  subject  of  an  action : 
but  not  a  mere  lie  thrown  out  at  random  without  any  intention  of 
hurting  anybody,  but  which  some  person  was  foolish  enough  to  act 
upon ;  for  the  quo  animo  is  a  great  part  of  the  gist  of  the  action. 
Another  argument  which  had  been  made  use  of  is  that  this  is  a  new 
case,  and  that  there  is  no  precedent  of  such  an  action.  Where  cases 
are  new  in  their  principle,  there  I  admit  thatjt  is  necessary  to  have 
recourse  to  legislative  interposition  in  order  to  remedy  the  griev- 
ance :  but  where  the  case  is  only  new  in  the  instance,  and  the  only 
question  is  upon  the  application  of  a  principle  recognized  in  the  law 
to  such  new  case,  it  will  be  just  as  competent  to  courts  of  justice  to 
apply  the  principle  to  any  case  which  may  arise  two  centuries  hence 
as  it  was  two  centuries  ago :  If  it  were  not,  we  ought  to  blot  out  of 
our  law  books  one  fourth  part  of  the  cases  that  are  to  be  found  in 
them.  The  same  objection  might  in  my  opinion  have  been  made 
with  much  greater  reason  in  the  case  of  Coggs  v.  Bernard,  I  Salk. 
26,  for  there  the  defendant,  so  far  from  meaning  an  injury,  meant  a 
kindness,  though  he  was  not  so  careful  as  he  should  have  been  in 
the  execution  of  what  he  undertook.  And  indeed  the  principle  of 
the  case  does  not  in  my  opinion  seem  so  clear  as  that  of  the  case  now 
before  us,  and  yet  that  case  has  already  been  received  as  law.  Indeed 
one  great  reason  perhaps  why  this  action  has  never  occurred  may 
be  that  it  is  not  likely  that  such  species  of  fraud  should  be  practised 
unless  the  party  is  in  some  way  interested.  Therefore  I  think  the 
rule  for  arresting  the  judgment  ought  to  be  discharged. 

Lord  KENYON  and  BULLER,  J.,  concurred,  GROSE,  J.,  dis- 
senting. Rule  for  arresting  the  judgment  discharged. 

(This  doctrine  that  an  action  will  not  lie  for  fraud  unless  It  has  caused 
damage  to  the  plaintiff  is  well  settled.  Ming  v.  Woolfolk,  116  U.  S.  599,  6 
Sup.  Ct  489,  29  L.  Ed.  740 ;  Danforth  v.  Gushing,  77  Me.  182 ;  Dawe  v.  Morris, 
149  Mass.  188,  21  N.  E.  313,  4  L.  R.  A.  158,  14  Am.  St.  Rep.  404 ;  Taylor  v. 
Guest,  58  N.  T.  262 ;  Byard  v.  Holmes,  84  N.  J.  Law,  296 ;  Runge  v.  Brown, 
23  Neb.  817,  34  N.  W.  660.) 


GENERAL  PRINCIPLES.  75 


In  actions  of  tort,  damages  may  be  awarded  for  the  prox- 
imate, but  not  for  the  remote,  consequences  of  the  tor- 
tious  act. — Nature  of  this  distinction. 

—    (a)    General   Principles. 

(94  U.  S.  409,  24  L.  Ed.  256.) 

MILWAUKEE  &  ST.  P.  RY.  CO.  v.  KELLOGG  (In  part). 
(Supreme  Court  of  the  United  States.    October  Term,  1876.) 

1.  PBOXIMATE  OB  REMOTE  CAUSE. 

To  warrant  a  finding  that  negligence,  or  an  act  not  amounting  to  wan- 
ton wrong,  is  the  proximate  cause  of  an  injury,  it  must  appear  that  the 
injury  was  the  natural  and  probable  consequence  of  the  negligence  or 
wrongful  act,  and  that  it  ought  to  have  been  foreseen  in  the  light  of  at- 
tendant circumstances.  When  there  is  no  intermediate  efficient  cause,  dis- 
connected from  the  primary  fault,  and  self-operating,  which  produced  the 
Injury,  the  original  wrong  must  be  considered  as  reaching  to  the  effect,  and 
proximate  to  it. 

2.  SAME— INJUBY  BY  SPBEADING  PIBE. 

Defendants'  elevator,  120  feet  high,  built  of  pine  lumber,  and  standing 
on  the  bank  of  a  river,  was  set  on  fire  from  a  steam-boat,  also  owned  by 
defendants,  which  made  a  landing  at  the  elevator  when  an  unusually 
strong  wind  was  blowing  towards  it;  and  the  fire  was  communicated 
from  the  elevator  to  plaintiff's  saw-mill,  538  feet  from  the  elevator,  and 
to  his  lumber,  the  nearest  pile  of  which  was  388  feet  distant  from  the 
elevator,  in  the  direction  in  which  the  wind  was  blowing,  and  they  were 
destroyed.  Plaintiff  brought  an  action  to  recover  damages  therefor  from 
defendants  on  the  ground  of  negligence  of  the  latter  in  setting  fire  to 
their  elevator.  Held,  that  it  was  not  error  to  refuse  to  instruct  the  jury 
that  the  injury  was  too  remote  from  the  negligence  to  afford  ground  for 
a  recovery,  and  to  submit  to  them  to  find  whether  the  burning  of  the 
mill  and  lumber  was  the  result  naturally  and  reasonably  to  be  expected 
from  the  burning  of  the  elevator,  under  the  circumstances,  and  whether 
it  was  the  result  of  the  continued  effect  of  the  sparks  from  the  steam- 
boat, without  the  aid  of  other  causes  not  reasonably  to  have  been  ex- 
pected ;  and  that  a  finding  of  the  jury  that  the  burning  of  the  mill  and 
lumber  was  the  unavoidable  consequence  of  the  burning  of  the  elevator 
was,  in  effect,  a  finding  that  there  was  no  intervening  and  independent 
cause  between  the  negligent  conduct  of  defendants  and  the  injury  to 
plaintiff. 

Error  to  the  Circuit  Court  of  the  United  States  for  the  District  of 
Iowa. 

STRONG,  J.  This  was  an  action  to  recover  compensation  for  the 
destruction  by  fire  of  the  plaintiff's  saw-mill  and  a  quantity  of  lumber, 
situated  and  lying  in  the  state  of  Iowa,  and  on  the  banks  of  the  River 
Mississippi.  That  the  property  was  destroyed  by  fire  was  uncontro- 
verted.  From  the  bill  of  exceptions  it  appears  that  the  "plaintiff  al- 
leged the  fire  was  negligently  communicated  from  the  defendants' 
steam-boat  Jennie  Brown  to  an  elevator  built  of  pine  lumber,  and  one 
hundred  and  twenty  feet  high,  owned  by  the  defendants,  and  standing 


76  LAW  OF  TORTS. 

on  the  bank  of  the  river,  and  from  the  elevator  to  the  plaintiff's  saw- 
mill and  lumber-piles,  while  an  unusually  strong  wind  was  blowing 
from  the  elevator  towards  the  mill  and  lumber.  On  the  trial,  it  was 
admitted  that  the  defendants  owned  the  steam-boat  and  elevator ;  that 
the  mill  was  five  hundred  and  thirty-eight  feet  from  the  elevator; 
and  that  the  nearest  of  plaintiff's  piles  of  lumber  was  three  hundred 
and  eighty-eight  feet  distant  from  it."  The  verdict  of  the  jury  was: 

(1)  That  the  elevator  was  burned  from  the  steamer  Jennie  Brown; 

(2)  that  such  burning  was  caused  by  not  using  ordinary  care  and 
prudence  in   landing  at  the  elevator,   under  circumstances   existing 
at  that  particular  time ;  and  (3)  that  the  burning  of  the  mill  ^nd  lum- 
ber was  the  unavoidable  consequence  of  the  burning  of  the  elevator. 
The  only  reasonable  construction  of  the  verdict  is  that  the  fault  of 
the  defendants — in  other  words,  their  want  of  ordinary  care  and  pru- 
dence— consisted  in  landing  the  steamer  at  the  elevator  in  the  circum- 
stances then  existing,  when  a  gale  of  wind  was  blowing  towards  it, 
when  the  elevator  was  so  combustible  and  so  tall.     If  this  is  not  the 
meaning  of  the  verdict,  no  act  of  negligence,  or  want  of  care,  or  of 
fault  has  been  found.     And  this  is  one  of  the  faults  charged  in  the 
declaration.     It  averred  that,  while  the  wind  was  blowing  a  gale  from 
the  steam-boat  towards  and  in  the  direction  of  the  elevator,  the  defend- 
ants carelessly  and  negligently  allowed,  permitted,  and  counseled,  (or, 
as  stated  in  another  count,  "directed,")  the  steam-boat  to  approach 
and  lie  alongside  of  or  in  close  proximity  to  said  elevator.     This  is 
something  more  than  nonfeasance;    it  is  positive  action, — the  result, 
consequence,  or  outworking,  as  the  jury  have  found  it,  of  the  want 
of  such  care  as  should  have  been  exercised. 

An  exception  has  been  taken  to  the  refusal  of  the  court  to  instruct 
the  jury,  as  requested,  that  "if  they  believed  the  sparks  from  the  Jen- 
nie Brown  set  fire  to  the  elevator  through  the  negligence  of  the  de- 
fendants, and  the  distance  of  the  elevator  from  the  nearest  lumber- 
pile  was  three  hundred  and  eighty-eight  feet,  and  from  the  mill  five 
hundred  and  twenty-eight  feet,  then  the  proximate  cause  of  the  burn- 
ing of  the  mill  and  lumber  was  the  burning  of  the  elevator,  and  the 
injury  was  too  remote  from  the  negligence  to  afford  a  ground  for  a 
recovery."  This  proposition  the  court  declined  to  affirm,  and  in  lieu 
thereof  submitted  to  the  jury  to  find  whether  the  burning  of  the  mill 
and  lumber  was  the  result  naturally  and  reasonably  to  be  expected 
from  the  burning  of  the  elevator;  whether  it  was  a  result  which,  un- 
der the  circumstances,  would  naturally  follow  from  the  burning  of 
the  elevator;  and  whether  it  was  the  result  of  the  continued  effect 
of  the  sparks  from  the  steam-boat,  without  the  aid  of  other  causes 
not  reasonably  to  be  expected.  All  this  is  alleged  to  have  been  er- 
roneous. The  assignment  presents  the  oft-embarrassing  question  what 
is  and  what  is  not  the  proximate  cause  of  an  injury.  The  point  pro- 
pounded to  the  court  assumed  that  it  was  a  question  of  law  in  this 
case,  and  in  its  support  the  two  cases  of  Ryan  v.  Railroad  Co.,  35  N. 
Y.  210,  91  Am.  Dec.  49,  and  Railroad  Co.  v.  Kerr,  62  Pa.  353,  I  Am. 


GENERAL  PRINCIPLES.  77 

Rep.  431,  are  relied  upon.  Those  cases  have  been  the  subject  of  much 
criticism  since  they  were  decided,  and  it  may  perhaps  be  doubted 
whether  they  have  always  been  quite  understood.  If  they  were  in- 
tended to  assert  the  doctrine  that  when  a  building  has  been  set  on 
fire  through  the  negligence  of  a  party,  and  a  second  building  has  been 
fired  from  the  first,  it  is  a  conclusion  of  law  that  the  owner  of  the 
second  has  no  recourse  to  the  negligent  wrong-doer,  they  have  not 
been  accepted  as  authority  for  such  a  doctrine,  even  in  the  states  where 
the  decisions  were  made.  Webb  v.  Railroad  Co.,  49  N.  Y.  420,  10 
Am.  Rep.  389,  and  Railroad  Co.  v.  Hope,  80  Pa.  373,  21  Am.  Rep. 
100.  And  certainly  they  are  in  conflict  with  numerous  other  decided 
cases.  Kellogg. v.  Railroad  Co.,  26  Wis.  224,  7  Am.  Rep.  69;  Perley 
v.  Railroad  Co.,  98  Mass.  414,  96  Am.  Dec.  645 ;  Higgins  v.  Dewey, 
107  Mass.  494,  9  Am.  Rep.  63 ;  Kent  v.  Railroad  Co.,  59  111.  349,  14 
Am.  Rep.  13.  The  true  rule  is  that  what  is  the  proximate  cause  of 
an  injury  is  ordinarily  a  question  for  the  jury.  It  is  not  a  question 
of  science  or  of  legal  knowledge.  It  is  to  be  determined  as  a  fact,  in 
view  of  the  circumstances  of  fact  attending  it.  The  primary  cause 
may  be  the  proximate  cause  of  a  disaster,  though  it  may  operate 
through  successive  instruments,  as  an  article  at  the  end  of  a  chain' 
may  be  moved  by  a  force  applied  to  the  other  end,  that  force  being 
the  proximate  cause  of  the  movement,  or  as  in  the  oft-cited  case  of 
the  squib  thrown  into  the  market-place.  Scott  v.  'Shepherd,  2  W.  Bl. 
892.  The  question  always  is,  was  there  an  unbroken  connection  be- 
tween the  wrongful  act  and  the  injury, — a  continuous  operation?  Did 
the  facts  constitute  a  continuous  succession  of  events,  so  linked  to- 
gether as  to  make  a  natural  whole,  or  was  there  some  new  and  inde- 
pendent cause  intervening  between  the  wrong  and  the  injury?  It  is 
admitted  that  the  rule  is  difficult  of  application.  But  it  is  generally 
held  that,  in  order  to  warrant  a  finding  that  negligence,  or  an  act  not 
amounting  to  wanton  wrong,  is  the  proximate  cause  of  an  injury,  it 
must  appear  that  the  injury  was  the  natural  and  probable  consequence 
of  the  negligence  or  wrongful  act,  and  that  it  ought  to  have  been  fore- 
seen in  the  light  of  the  attending  circumstances.  These  circumstances, 
in  a  case  like  the  present,  are  the  strength  and  direction  of  the  wind, 
the  combustible  character  of  the  elevator,  its  great  height,  and  the 
proximity  and  combustible  nature  of  the  saw-mill,  and  the  piles  of 
lumber.  Most  of  these  circumstances  were  ignored  in  the  request  for 
instruction  to  the  jury.  Yet  it  is  obvious  that  the  immediate  and  in- 
separable consequences  of  negligently  firing  the  elevator  would  have 
been  very  different  if  the  wind  had  been  less,  if  the  elevator  had  been 
a  low  building  constructed  of  stone,  if  the  season  had  been  wet,  or  if 
the  lumber  and  the  mill  had  been  less  combustible.  And  the  defend- 
ants might  well  have  anticipated  or  regarded  the  probable  conse- 
quences of  their  negligence  as  much  more  far-reaching  than  would 
have  been  natural  or  probable  in  other  circumstances.  We  do  not 
say  that  even  the  natural  and  probable  consequences  of  a  wrongful 
act  or  omission  are  in  all  cases  to  be  chargeable  to  the  misfeasance  or 


78  LAW  OF  TORTS. 

nonfeasance.  They  are  not,  when  there  is  a  sufficient  and  independ- 
ent cause  operating  between  the  wrong  and  the  injury.  In  such  a 
case,  the  resort  of  the  sufferer  must  be  to  the  originator  of  the  inter- 
mediate cause.  But,  when  there  is  no  intermediate  efficient  cause, 
the  original  wrong  must  be  considered  as  reaching  to  the  effect,  and 
proximate  to  it.  The  inquiry  must  therefore  always  be  whether  there 
was  any  intermediate  cause  disconnected  from  the  primary  fault,  and 
self -operating,  which  produced  the  injury.  Here  lies  the  difficulty. 
But  the  inquiry  must  be  answered  in  accordance  with  common  under- 
standing. In  a  succession  of  dependent  events,  an  interval  may  al- 
ways be  seen  by  an  acute  mind  between  a  cause  and  its  effect,  though 
it  may  be  so  imperceptible  as  to  be  overlooked  by  a  common  mind. 
Thus,  if  a  building  be  set  on  fire  by  negligence,  and  an  adjoining 
building  be  destroyed  without  any  negligence  of  the  occupants  of  the 
first,  no  one  would  doubt  that  the  destruction  of  the  second  was  due 
to  the  negligence  that  caused  the  burning  of  the  first.  Yet  in  truth, 
in  a  very  legitimate  sense,  the  immediate  cause  of  the  burning  of  the 
second  was  the  burning  of  the  first.  The  same  might  be  said  of  the 
burning  of  the  furniture  in  the  first.  Such  refinements  are  too  minute 
for  the  rules  of  social  conduct.  In  the  nature  of  things,  there  is. in 
every  transaction  a  succession  of  events  more  or  less  dependent  upon 
those  preceding,  and  it  is  the  province  of  a  jury  to  look  at  this  suc- 
cession of  events  or  facts,  and  ascertain  whether  they  are  naturally 
and  probably  connected  with  each  other  by  a  continuous  sequence,  or 
are  dissevered  by  new  and  independent  agencies,  and  this  must  be  de- 
termined in  view  of  the  circumstances  existing  at  the  time.  If  we 
are  not  mistaken  in  these  opinions,  the  circuit  court  was  correct  in 
refusing  to  affirm  the  defendant's  proposition,  and  in  submitting  to 
the  jury  to  find  whether  the  burning  of  the  mill  and  lumber  was  a 
result  naturally  and  reasonably  to  be  expected  from  the  burning  of 
the  elevator,  under  the  circumstances,  and  whether  it  was  the  result 
of  the  continued  influence  or  effect  of  the  sparks  from  the  boat,  with- 
out the  aid  or  concurrence  of  other  causes  not  reasonably  to  have 
been  expected.  The  jury  found,  in  substance,  that  the  burning  of 
the  mill  and  lumber  was  caused  by  the  negligent  burning  of  the  ele- 
vator, and  that  it  was  the  unavoidable  consequence  of  that  burning. 
This,  in  effect,  was  finding  that  there  was  no  intervening  and  inde- 
pendent cause  between  the  negligent  conduct  of  the  defendants  and 
the  injury  to  the  plaintiff.  The  judgment  must  therefore  be  affirmed. 

(The  tests  laid  down  In  this  case  for  determining  whether  a  cause  Is  proxi- 
mate or  remote  have  often  been  approved  in  subsequent  decisions  in  the 
various  states.  [Pullman  Palace  Car  Co.  v.  Laack,  143  111.  242.  32  N.  E.  285, 
18  L.  R.  A.  215;  Louisville,  etc..  Ferry  Co.  v.  Nolan,  135  Ind.  60,  34  N.  E  710' 
Adams  v.  Young,  44"  Ohio  St.  80.  4  N.  E.  599,  58  Am.  Rep.  789 ;  Hammill  v. 
Pa.  H.  Co.,  56  N.  J.  Law,  370,  29  All.  151,  24  L.  R.  A.  531 ;  Martin  v.  N.  Y. 
*-  IS.  E.  R.  Co.,  62  Conn.  331,  25  Atl.  239 ;  Mo.  Pac.  R.  Co.  v.  Columbia,  65  Kan. 
390,  69  Pac.  338,  58  L.  R.  A.  399:  Atkinson  v.  Goodrich  Transp.  Co.,  60  Wis. 
141,  18  N.  W.  764.  50  Am.  Rep.  352.  These  cases  contain  valuable  discussions 
of  the  subject  See,  also,  13  Am.  &  Eng.  Enc.  of  Law  (2d  Ed.)  446  et  '.]) 


GENERAL   PRINCIPLES.  79 

The  criticism  which  it  makes  of  the  Ryan  and  Kerr  Cases  in  New  York  and 
Pennsylvania  has  been  concurred  in  throughout  the  country,  in  states  where 
similar  questions  have  arisen,  and  the  doctrines  established  by  these  decisions 
have  been  repudiated.  .  Id. ;  Perley  v.  Eastern  R.  Co.,  98  Mass.  414,  96  Am. 
Dec.  645 ;  Del.  L.  &  W.  R.  Co.  v.  Salmon,  39  N.  J.  Law,  299,  23  Am.  Rep.  214 ; 
Louisville,  etc.,  R.  Co.  v.  Nitsche,  126  Ind.  229,  26  N.  E.  51,  9  L.  R.  A.  750,  22 
Am.  St.  Rep.  582 ;  13  Am.  &  Eng.  Enc.  of  Law  [2d  Ed.]  452.  Nevertheless  the 
Ryan  Case  has  recently  been  -upheld  in  New  York,  and  it  is  now  the  settled 
law  of  that  state  that  damage  done  by  a  spreading  fire  to  the  immediately 
adjacent  lands  is  a  proximate  result,  while  if  the  fire  runs  across  the  abut- 
ting owners'  lines  upon  lands  of  other  proprietors,  the  damage  there  done  is 
the  remote  result,  for  which  the  starter  of  the  fire  is  not  liable.  Hoffman  v. 
King,  160  N.  Y.  618,  55  N.  E.  401,  46  L.  R.  A.  672,  73  Am.  St  Rep.  715.  So 
the  Kerr  Case  is  still  the  law  of  Pennsylvania,  though  doubt  has  been  ex- 
pressed in  a  later  decision  in  that  state  whether  it  was  proper  for  the  court 
in  that  case  to  decide  the  question  instead  of  leaving  it  to  the  jury.  Haverly 
v.  Railroad  Co.,  135  Pa.  50,  58,  19  Atl.  1013,  20  Am.  St.  Rep.  848. 

In  some  states  a  party  negligently  starting  a  fire  has  been  held  liable  for  the 
destruction  of  property  caused  by  it,  though  it  spread  over  long  distances; 
as,  e.  g.,  Adams  v.  Young,  44  Ohio  St.  80,  4  N.  E.  599,  58  Am.  Rep.  789  [200 
feet] ;  Atkinson  v.  Goodrich  Transp.  Co.,  60  Wis.  141,  18  N.  W.  764,  50  Am. 
Rep.  352  [3,500  feet] ;  Poeppers  v.  Mo.,  etc.,  R.  Co.,  67  Mo.  715,  29  Am.  Rep. 
518  [eight  miles] ;  Chicago,  etc.,  R.  Co.  v.  McBride,  54  Kan.  172,  37  Pac.  978 
[ten  miles].  This  was  because,  under  the  circumstances  as  to  wind,  weather, 
intervening  combustible  material,  etc.,  such  a  result  was  reasonably  to  be  re- 
garded as  natural  and  probable.) 


(181  111.  116,  54  N.  E.  897.) 

CITY  OF  DIXON  v.  SCOTT  (in  part). 

(Supreme  Court  of  Illinois.    October  13,  1899.) 

PROXIMATE  CAUSE— NEGLIGENCE— ABILITY  TO  FORESEE  CONSEQUENCES. 

To  make  the  negligent  act  of  the  defendant  the  proximate  cause  of  plain- 
tiff's injury,  it  is  not  necessary  that  the  particular  injury,  and  the  par- 
ticular manner  in  which  it  occurred,  might  reasonably  have  been  expected 
to  follow  such  negligent  act.  It  is  sufficient  that  by  the  exercise  of  or- 
dinary care  he  might  have  foreseen  that  some  injury  would  result  from 
his  negligence,  even  though  he  could  not  have  foreseen  the  particular 
results. 

Appeal  from  Appellate  Court,  Second  District. 

Action  by  Robert  H.  Scott,  administrator,  against  the  city  of 
Dixon  for  injuries  to  plaintiff's  decedent.  Decedent  was  traveling 
on  a  sidewalk  when  a  neighbor  coming  in  the  opposite  direction 
stepped  upon  one  end  of  a  loose  board,  and  the  end  in  front  of  de- 
cedent was  thereby  raised,  caught  her  foot,  and  caused  her  to  fall 
and  sustain  the  injuries  complained  of.  From  a  judgment  of  the 
appellate  court  (81  111.  App.  368)  affirming  a  judgment  for  plaintiff, 
defendant  appeals.  Affirmed. 

CARTER,  J.  The  court  decided  properly  in  refusing  the  defend- 
ant's third  instruction,  having  reference  to  the  question  of  proximate 


80  LAW  OF  TORTS. 

cause  of  the  injury.  This  instruction  would  have  told  the  jury 
that,  if  "it  was  not  natural  or  reasonable  to  expect  or  anticipate 
fhat  Mrs.  Kost,  or  any  one  else,  would  step  on  the  end  of  one  of 
said  planks,  and  cause  the  other  end  to  tip  up,  and  thereby  trip  or 
cause  the  plaintiff  to  fall,  and  receive  the  injury  complained  of," 
then  the  plaintiff  could  not  recover.  In  order  to  make  the  negli- 
gent act  of  appellant  the  proximate  cause  of  the  injury,  it  was  not 
necessary  that  the  particular  injury,  and  the  particular  manner  in 
which  it  occurred,  might  reasonably  have  been  expected  to  follow 
from  such  negligent  act.  In  16  Am.  &  Eng.  Enc.  Law,  438,  the 
author  says:  "Consequences  which  follow  in  unbroken  sequence, 
without  an  intervening  cause,  from  the  original  wrong,  are  natural ; 
and  for  such  consequences  the  wrongdoer  must  be  held  responsible, 
even  though  he  could  not  have  foreseen  the  particular  results,  pro- 
vided that  by  the  exercise  of  ordinary  care  he  might  have  foreseen 
that  some  injury  would  result  from  his  negligence."  It  would  be  very 
unreasonable  to  make  the  liability  of  the  defendant  depend  on  the 
question  whether  the  precise  injury  complained  of,  and  the  manner 
of  its  occurrence,  ought  to  have  been  foreseen.  Car  Co.  v.  Laack, 
143  111.  242,  32  N.  E.  285,  18  L.  R.  A.  215. 

We  find  no  error,  and  the  judgment  must  be  affirmed.  Judgment 
affirmed. 

(This  rule  is  supported  by  abundant  authority.  Hill  v.  Winsor,  118  Mass. 
251 ;  Schumaker  v.  St  Paul,  etc.,  R.  Co.,  46  Minn.  39,  48  N.  W.  559,  12  L.  R. 
A.  257 ;  Hoepper  v.  Southern  Hotel  Co.,  142  Mo.  378,  44  S.  W.  257 ;  Hammill 
v.  Pa.  R.  Co.,  56  N.  J.  Law,  370,  29  Atl.  151,  24  L.  R.  A.  531 ;  Atchison,  etc., 
R.  Co.  v.  Parry  [Kan.]  73  Pac.  105 ;  13  Am.  &  Eng.  Enc.  of  Law  [2d  Ed.]  450 ; 
21  Id.  487 ;  cf.  Ehrgott  y.  Mayor,  etc.,  of  N.  Y.,  96  N.  Y.  264,  48  Am.  Rep.  622.) 


—   (L)    Difference  Between  a.  Cause  and  a  Condition* 

(161  Mass.  182,  36  N.  E.  790.) 

BOULESTER  v.  PARSONS. 

(Supreme  Judicial  Court  of  Massachusetts.    Norfolk.    March  28,  1894.) 

CIRCUMSTANCES  CONSTITUTING  A  "CONDITION." 

In  an  action  for  damages  under  Pub.  St  c.  102,  §  93,  for  the  loss  of  a 
horse  by  reason  of  being  bitten  by  defendant's  dog,  where  it  appeared  that 
the  horse  injured  was  harnessed  to  a  wagon,  and  was  being  led  behind  and 
attached  to  another  wagon,  it  was  error  not  to  charge  that  a  man  has  a 
right  to  lead  a  horse  in  such  manner,  and  the  fact  that  he  was  so  leading, 
the  horse  was  not  such  evidence  of  negligence  as  to  preclude  his  recovery. 
The  leading  of  the  horse  behind  the  wagon  was  simply  a  condition,  and 
not,  in  any  just  sense,  a  contributory  cause,  of  the  injury. 


GENERAL  PRINCIPLES.  81 

Exceptions  from  Superior  Court,  Norfolk  County;  John  Hopkins, 
Judge. 

Action  by  Jesse  O.  Boulester  against  Charles  W.  Parsons  to  re- 
cover damages  for  the  loss  of  a  horse  by  reason  of  being  bitten  by 
a  dog.  To  a  judgment  for  defendant,  plaintiff  excepts.  Exceptions 
sustained. 

LATHROP,  J.  This  is  an  action,  under  Pub.  St.  c.  102,  §  93%  for 
the  loss  of  a  horse  alleged  to  have  been  bitten  by  the  defendant's 
dog,  in  consequence  of  which  the  horse  died.  There  was  evidence 
that  the  plaintiff's  brother  was  driving  an  express  wagon,  drawn 
by  a  pair  of  horses,  along  a  country  road;  that  in  the  rear  of  this 
wagon,  and  attached  to  it  by  the  reins,  was  another  horse  harnessed 
to  a  single  wagon ;  and  that  the  defendant's  dog  ran  out  and  bit  the 
horse  attached  to  the  single  wagon.  The  defendant  contended  that 
it  was  negligence  on  the  part  of  the  plaintiff  to  lead  a  horse  harnessed 
in  a  wagon  behind  and  attached  to  another  wagon.  The  plaintiff 
thereupon  requested  the  presiding  judge  to  instruct  the  jury  in  sub- 
stance as  follows :  A  man  has  a  right  to  lead  a  horse  in  the  way  and 
manner  described,  and  the  mere  fact  that  he  was  so  leading  a  horse 
is  not  such  evidence  of  negligence  as  would  preclude  the  plaintiff 
from  recovering  in  this  action  for  the  bite  of  the  dog.  The  judge 
refused  so  to  rule,  and  submitted  the  question  to  the  jury  whether 
the  method  of  traveling  adopted  was  negligent,  and  was  such  as  to 
induce  an  attack  by  the  dog.  The  jury  returned  a  verdict  for  the 
defendant,  and  the  plaintiff  alleged  exceptions  to  the  refusal  to  rule 
as  requested,  and  to  the  instructions  given.  We  are  of  opinion  that 
the  ruling  requested  should  have  been  given  in  substance.  While 
the  doctrine  of  contributory  negligence  has  been  often  said  to  apply 
to  an  action  on  Pub.  St.  c.  102,  §  93,  and  we  have  no  doubt  that  it 
does  apply  where  the  plaintiff  incites  or  provokes  a  dog,  and,  it  may 
be,  in  other  cases,  the  doctrine  has  no  application  to  the  case  at 
bar.  The  leading  of  a  horse  behind  a  wagon  was  simply  a  condi- 
tion, and  not,  in  any  just  sense,  a  contributory  cause,  of  the  injury. 
In  White  v.  Lang,  128  Mass.  598,  35  Am.  Rep.  402,  a  person  un- 
lawfully traveling  on  the  Lord's  day  was  bitten  by  a  dog,  and  it  was 
held  that  his  so  traveling  was  merely  a  condition,  and  did  not  prevent 
his  maintaining  an  action  under  the  statute.  To  hold  that  the  ques- 
tion whether  leading  a  horse  behind  a  wagon  should  be  submitted 
to  the  jury  as  evidence  of  negligence  on  the  part  of  the  plaintiff  in 
inducing  an  attack  by  a  dog  would  render  it  necessary  to  submit  to 
the  jury  the  question  whether  the  color  of  the  horse  or  of  the  wagon, 
or  of  the  clothes  of  the  driver,  might  not  have  induced  an  attack. 
The  law  does  not  pay  this  respect  to  the  characteristics  or  prejudices 

i  This  statutory  provision  is  as  follows :     "Every  owner  or  keeper  of  a  dog 
shall  forfeit  to  any  person  injured  by  it  double  the  amount  of  the  damage  sus- 
tained by  him,  to  be  recovered  in  an  action  of  tort." 
CHASE  (2o  ED.) — 6 


g2  LAW  OF  TORTS. 

of  dogs.    See  Denison  v.  Lincoln,  131  Mass.  236.     Exceptions  sus- 
tained. 

(Other  valuable  cases  showing  the  difference  between  a  "cause"  and  a  "con- 
dition" are  Mo.  Pae.  R.  Co.  v.  Columbia,  65  Kan.  390,  69  Pac.  338,  58  L.  R.  A. 
399  •  Louisville,  etc.,  Ferry  Co.  v.  Nolan,  135  Ind.  60,  34  N.  E.  710 ;  Lillibridge 
v  McCann,  117  Mich.  84,  75  -N.  W.  288,  41  L.  R.  A.  381,  72  Am.  St.  Rep.  553 ; 
Berry  Y.  Sugar  Notch  Borough,  191  Pa.  345,  43  Atl.  240 ;  Delaware,  L.  &  W. 
R  Co  v.  Trautwein,  52  N.  J.  Law,  169,  19  Atl.  178,  7  L.  R.  A.  435,  19  Am.  St. 
Rep.  442 ;  Hope  v.  Fall  Brook  Coal  Co.,  3  App.  Div.  70,  38  N.  Y.  Supp.  1040. 
See,  also,  21  Am.  &  Eng.  Enc.  of  Law  [2d  Ed.]  494.) 


—   (o)    Intervening  Operation  of  a  Natural  Force* 

(4  Bing.  607.) 

SIORDET  v.  HALL  et  al. 

(May  5,  1828.) 

NEGLIGENCE— INJTJBIES  TO  CARGO — ACT  OF  GOD. 

Where  damage  was  done  to  a  cargo  by  water  escaping  through  the  pipe 
of  a  steam  boiler,  in  consequence  of  the  pipe  having  been  cracked  by 
frost,  held,  that  this  was  not  an  act  of  God,  but  must  be  deemed  the 
proximate  result  of  the  captain's  negligence  in  filling  his  boiler,  in  mid- 
winter, several  hours  before  he  was  to  heat  the  boiler  and  start  on  his 
voyage,  although  he  was  but  following  the  common  practice  to  fill  over- 
night when  the  vessel  started  in  the  morning. 

Action  against  the  defendants,  as  carriers  by  water,  for  not  deliver- 
ing a  cargo  in  proper  condition. 

At  the  trial  before  BEST,  C.  J.,  London  sittings  after  Trinity  term 
last,  the  defense  was  that  the  mischief  was  done  by  the  act  of  God, 
which  was  one  of  the  risks  excepted  in  the  bill  of  lading.  It  ap- 
peared that  the  cargo  was  shipped  on  the  loth  February,  and  the 
vessel,  a  steam  vessel,  was  then  tight  and  staunch.  The  captain,  ex- 
pecting to  start  the  following  morning,  caused  the  water  to  be  pumped 
into  the  boiler  on  the  evening  of  the  loth,  as  that  operation  required 
two  hours,  and  the  heating  about  three  more.  For  this  reason,  it  was 
his  practice,  and  the  practice  of  steam  vessels  generally,  when  they 
started  in  the  morning,  to  fill  the  boiler  the  preceding  evening.  The 
next  morning  it  was  ascertained  that  the  pipe  which  conducts  the 
water  into  the  boiler  had  cracked,  that  a  considerable  quantity  of  wa- 
ter had  escaped  by  this  means  into  the  hold,  and  that  much  of  the 
cargo  was  damaged.  The  pipe  was  a  sound  and  good  one,  and  its 
bursting  was  occasioned  by  the  action  of  frost  on  the  external  portion 
of  it.  The  Chief  Justice  told  the  jury  that  if  the  water  had  been  un- 
necessarily placed  in  the  boiler,  or,  considering  the  season  of  the  year, 
improperly  left  there,  without  heat  to  prevent  the  action  of  frost  upon 


GENERAL   PRINCIPLES.  83 

the  pipe,  the  mischief  was  not  occasioned  by  the  act  of  God,  but  by 
gross  negligence.  The  jury  having  found  for  the  plaintiff, 

Taddy,  Serjt.,  obtained  a  rule  nisi  for  a  new  trial,  on  the  ground 
of  an  alleged  misdirection  by  the  learned  Chief  Justice. 

Wilde,  Serjt.,  who  was  to  have  shown  cause,  was  stopped  by  the 
court,  who  called  on 

Taddy  to  support  his  rule.  There  was  no  negligence  in  filling  the 
boiler  overnight,  which  is  the  usual  and  necessary  practice  where  dis- 
patch is  required.  The  accident  was  immediately  occasioned  by  the 
frost,  and,  in  law,  causa  proxima  non  remota  spectatur.  It  is  urged 
that  the  action  of  the  frost  might  have  been  prevented  by  fire,  but 
that  argument  would  render  useless  all  exceptions  in  a  bill  of  lading, 
for  all  the  excepted  risks  might  be  avoided  by  certain  precautions — 
the  king's  enemies,  by  convoy;  rocks,  by  care  in  navigation;  and 
lightning,  by  conductors.  But  the  meaning  of  the  exceptions  is  that 
the  owners  shall  not  be  liable  where  the  injury  proceeds  from  these 
causes,  unless  it  has  been  occasioned  purposely.  The  question  in  all 
such  cases  ought  to  be,  what  was  the  immediate  cause  of  the  loss? 
Smith  v.  Shepherd,  Abbott,  Shipp.  (4th  Ed.)  pp.  263,  269,  pt.  3,  c.  4. 

BEST,  C.  J.  No  one  can  doubt  that  this  loss  was  occasioned  by 
negligence.  It  is  well  known  that  frost  will  rend  iron,  and,  if  so,  the 
master  of  a  vessel  cannot  be  justified  in  keeping  water  within  his 
boiler,  in  the  middle  of  winter,  when  frost  may  be  expected.  The 
jury  found  that  this  was  negligence,  and  I  agree  in  their  verdict. 

The  rest  of  the  Court  concurred,  and  the  rule  was  discharged. 

(In  like  manner,  when  a  fire  is  negligently  started,  or  negligently  cared  for, 
and  is  caused  to  spread  by  an  ordinary  wind,  or  even  by  a  violent  wind  which 
might  have  been  reasonably  expected  to  occur,  the  negligent  defendant,  and 
not  the  wind,  Is  to  be  deemed  the  proximate  cause  [Northern  Pac.  R.  Co.  v. 
Lewis,  51  Fed.  658,  2  C.  C.  A.  446 ;  Hays  v.  Miller,  70  N.  Y.  112 ;  Lillibridge 
v.  McCann,  117  Mich.  84,  75  N.  W.  288,  41  L.  R.  A.  381,  72  Am.  St.  Rep.  553 ; 
Fent  v.  Toledo,  etc.,  R.  Co.,  59  111.  349,  14  Am.  Rep.  13 ;  Higgins  v.  Dewey, 
107  Mass.  494,  9  Am.  Rep.  63 ;  Louisville,  etc.,  R,  Co.  v.  Nitsche,  126  Ind.  229, 
26  N.  E.  51,  9  L.  R.  A.  750,  22  Am.  St.  Rep.  582 ;  Milwaukee,  etc.,  R.  Co.  v. 
Kellogg,  94  U.  S.  469,  24  L.  Ed.  256,  and  cases  cited] ;  and  so  as  to  the  opera- 
tion of  other  natural  forces,  as,  e.  g.,  where  burning  oil  floats  on  the  surface 
of  a  stream  and  communicates  fire  to  property  [Kuhn  v.  Jewett,  32  N.  J.  Eq. 
647 ;  contra,  Hoag  v.  Lake  Shore,  etc.,  R.  Co.,  85  Pa.  293,  27  Am.  Rep.  653] ; 
or  where  ordinary  floods  or  freshets  break  through  or  sweep  away  dams  or 
railway  embankments  [Libby  v.  Me.  Cent.  R.  Co.,  85  Me.  34,  26  Atl.  943,  20 
L.  R.  A.  812;  Crawford  v.  Rambo,  44  Ohio  St.  279,  7  N.  E.  429],  and  in 
other  like  cases.  But  it  has  often  been  held  that  when  injuries  or  losses 
are  occasioned  by  extraordinary  or  unprecedented  gales  or  floods  or  freshets 
or  storms,  etc.,  which  could  not  have  been  foreseen,  these  acts  of  God 
are  the  proximate  causes,  and  the  persons  whose  acts  constituted  the  con- 
ditions by  means  of  which  it  was  possible  for  the  harm  to  be  accomplished 
are  not  responsible ;  as,  e.  g.,  where  fire  is  spread  by  a  whirlwind  or  ex- 
tremely violent  gale  [Bock  v.  Grooms  (Neb.)  92  N.  W.  603;  Marvin  v.  Chi- 
cago, etc.,  R.  Co.,  79  Wis.  140,  47  N.  W.  1123,  11  L.  R.  A.  506 ;  Fahn  v.  Reich- 
ardt,  8  Wis.  255;  Needham  v.  King,  95  Mich.  303,  54  N.  W.  891;  Sweeney 
v.  Merrill,  38  Kan.  216,  16  Pac.  454,  5  Anx  St  Rep.  734] ;  or  where  structures, 


84  LAW  OF  TORTS. 

or  parts  thereof,  or  things  connected  therewith,  are  blown  over  or  blown  down 
by  like  gales,  and  injuries  result  therefrom  [Sutphen  v.  Hedden,  67  N.  J.  Law, 
324,  51  Atl.  721 ;  City  of  Allegheny  v.  Zimmermann,  95  Pa.  287,  40  Am.  Rep. 
649;  Blythe  v.  Denver,  etc.,  R.  Co.,  15  Colo.  333,  25  Pac.  702,  11  L.  R.  A, 
615,  22  Am.  St  Rep.  403] ;  or  where  extraordinary  floods  cause  loss  of  prop- 
erty [Central  Trust  Co.  v.  Wabash,  etc.,  R.  Co.  (C.  C.)  57  Fed.  441 ;  Pittsburg, 
etc.,  R.  Co.  v.  Gilleland,  56  Pa.  445,  94  Am.  Dec.  98;  Rodgers  v.  Cent.  Pac. 
R.  Co.,  67  Cal.  607,  8  Pac.  377 ;  Libby  v.  Me.  Cent  R.  Co.,  85  Me.  34,  26  Atl. 
943,  20  L.  R.  A.  812 ;  Borchardt  v.  Wausau  Boom  Co.,  54  Wis.  107,  11  X.  W. 
440,  41  Am.  Rep.  12 ;  Grand  Val.  Irr.  Co.  v.  Pitzer,  14  Colo.  App.  123,  59  Pac. 
420].  There  are  cases,  however,  in  which  a  defendant  has  been  held  liable 
for  the  consequences  of  an  extraordinary  gale,  etc.  Salisbury  v.  Herchenroder, 
106  Mass.  458,  8  Am.  Rep.  354 ;  Smith  v.  Faxon,  156  Mass.  589,  31  N.  E.  687.) 


— —   (d)    Intervening    Human    Agent,    Acting    Instinctively    or    in    an 

Emergency. 

(4  Denio,  464,  47  Am.  Dec.  268.) 

VANDENBURGH  v.  TRUAX. 

(Supreme  Court  of  New  York.    May  Term,  1847.) 

NEGLIGENCE— PROXIMATE  OB  REMOTE  CONSEQUENCES. 

A  boy,  having  had  a  quarrel  with  defendant  in  a  city  street  ran  away 
from  him.  Defendant  took  up  a  pickaxe,  and  followed  the  boy,  pursuing 
him  into  the  store  of  plaintiff,  by  whom  the  boy  was  employed.  In  trying 
to  save  himself  from  being  struck  with  the  pickaxe,  the  boy  knocked  out 
the  faucet  from  a  cask  of  wine,  and  part  of  the  wine  ran  out  and  was  lost 
Held,  that  defendant  was  liable  for  the  damages  to  plaintiff.  One  who 
does  an  illegal  or  mischievous  act,  likely  to  prove  injurious  to  others,  is 
answerable  for  all  the  consequences  which  may  directly  and  naturally 
result  therefrom,  although  he  did  not  intend  to  do  the  particular  injury 
which  followed. 

Error  to  Schenectady  Common  Pleas. 

Action  by  Truax  against  Vandenburgh,  brought  before  a  justice 
of  the  peace,  for  damages  alleged  to  have  been  caused  by  defendant 
willfully  driving  a  boy  through  plaintiff's  store,  and  knocking  a  cock 
or  faucet  from  a  barrel  of  wine  belonging  to  plaintiff,  causing  part 
of  the  wine  therein  to  be  lost.  The  evidence  was  that  defendant  had 
quarreled  with  a  negro  boy,  about  16  or  18  years  of  age,  employed 
by  plaintiff  as  an  hostler,  while  both  were  in  the  street  near  plaintiff's 
store  in  the  city  of  Schenectady ;  that,  the  boy  having  a  stone  in  his 
hand,  defendant  took  hold  of  him,  and  told  him  to  throw  down  the 
stone ;  that  the  boy  did  so,  and  broke  loose  from  defendant  and  ran 
away ;  that  defendant  then  took  up  a  pickaxe,  and  followed  the  boy, 
who  fled  into  plaintiff's  store,  where  defendant  pursued  him,  having 
the  pickaxe  in  his  hand ;  that,  the  rear  door  of  the  store  being  shut, 
the  boy,  not  being  able  to  escape  through  it  without  being  overtaken, 
ran  behind  the  counter,  as  the  witness  testified  he  believed,  to  save 
himself  from  being  struck  with  the  pickaxe;  and  that,  in  doing  so, 


GENERAL  PRINCIPLES.  85 

he  knocked  out  the  cock  or  faucet  of  a  cask  of  plaintiff's  wine,  and 
wine  of  the  value  of  $4  was  spilt  and  lost.  The  justice  rendered 
judgment  for  plaintiff,  which  was  affirmed  by  the  court  of  common 
pleas.  Defendant  brought  error  to  review  the  judgment  of  the  com- 
mon pleas. 

BRONSON,  C.  J.  It  may  be  laid  down  as  a  general  rule  that 
when  one  does  an  illegal  or  mischievous  act,  which  is  likely  to  prove 
injurious  to  others,  and  when  he  does  a  legal  act  in  such  a  careless 
and  improper  manner  that  injury  to  third  persons  may  probably 
ensue,  he  is  answerable,  in  some  form  of  action,  for  all  the  conse- 
quences which  may  directly  and  naturally  result  from  his  conduct, 
and  in  many  cases  he  is  answerable  criminally  as  well  as  civilly.  It 
is  not  necessary  that  he  should  intend  to  do  the  particular  injury 
which  follows,  nor,  indeed,  any  injury  at  all.  If  a  man  without  just 
cause  aim  a  blow  at  his  enemy,  which,  missing  him,  falls  upon  his 
friend,  it  is  a  trespass  upon  the  friend,  and  may  be  murder  if  a  deadly 
weapon  was  used,  and  death  ensued.  Or  if,  in  attempting  to  steal 
or  destroy  the  property  of  another,  he  unfortunately  wound  the  own- 
er, or  a  third  person,  he  must  answer  for  the  consequences,  although 
he  did  not  intend  that  particular  mischief.  And,  although  no  mis- 
chief of  any  kind  may  be  intended,  yet,  if  a  man  do  an  act  which 
is  dangerous  to  the  persons  or  property  of  others,  and  which  evinces 
a  reckless  disregard  of  consequences,  he  will  be  answerable  civilly, 
and  in  many  cases  criminally,  for  the  injuries  which  may  follow;  as 
if  he  discharge  a  gun,  or  let  loose  a  ferocious  or  mad  animal,  in  a 
multitude  of  people;  or  throw  a  stone  from  the  house-top  into  a 
street  where  many  are  passing;  or  keep  a  large  quantity  of  gun 
powder  near  the  dwelling  of  another  In  these  and  such  like  cases 
he  must  answer  for  any  injury  which  may  result  from  his  misconduct 
to  the  persons  or  property  of  others.  And,  if  the  act  was  so  immi- 
nently dangerous  to  others  as  to  evince  a  depraved  mind,  regardless 
of  human  life,  and  death  ensue,  it  will  be  murder.  These  are  familiar 
cases,  which  need  not  be  proved  by  referring  to  books.  In  the  case 
of  the  lighted  squib  which  was  thrown  into  the  market-house,  the 
debate  was  upon  the  form  of  the  remedy.  The  question  was  whether 
the  plaintiff  could  maintain  trespass  vi  et  armis,  or  whether  he  should 
not  have  brought  an  action  on  the  case.  His  right  to  recover  in  some 
form  seems  not  to  have  been  disputed.  Scott  v.  Shepherd,  2  W.  Bl. 
892,  3  Wils.  403.  In  that  case  the  impulse  was  given  to  inanimate 
matter,  while  here  a  living  and  rational  being  was  moved  by  tear. 
But  still  there  is  in  some  respects  a  striking  analogy  between  the 
two  cases.  There  the  force  which  the  defendant  gave  to  the  squib 
was  spent  when  it  fell  upon  the  standing  of  Yates ;  and  it  was  after- 
wards twice  put  in  motion,  and  in  new  directions,  first  by  Willis,  and 
then  by  Ryall,  before  it  struck  the  plaintiff,  and  put  out  his  eye.  But 
as  the  throwing  of  the  squib  was  a  mischievous  act,  which  was  likely 
to  do  harm  to  some  one,  and  as  the  two  men  who  gave  the  new  im- 


86  LAW  OF  TORTS. 

pulses  to  the  missile  acted  from  terror  and  in  self-defense,  the  de- 
fendant was  held  answerable  as  a  trespasser  for  the  injury  which 
resulted  to  the  plaintiff.  Now,  here,  although  the  negro  boy  may 
have  been  wrong  at  the  first,  yet  when  he  had  thrown  down  the 
stone,  and  was  endeavoring  to  get  away  from  the  difficulty  into 
which  he  had  brought  himself,  the  defendant  was  clearly  wrong  in 
following  up  the  quarrel.  When  the  boy  ran  upon  the  cask  of  wine. 
he  was  moved  with  terror  produced  by  the  illegal  act  of  the  defendant ; 
he  was  fleeing  for  his  life,  from  a  man  in  hot  pursuit,  armed  with  a 
deadly  weapon.  The  injury  which  the  plaintiff  sustained  was  not  the 
necessary  consequence  of  the  wrong  done  bv  the  defendant,  nor  was 
it  so  in  the  case  of  the  lighted  squib.  But  in  both  instances  the  wrong 
was  of  such  a  nature  that  it  might  very  naturally  result  in  an  injury 
to  some  third  person.  It  is  true  that  the  boy  might  have  gone  else- 
where, instead  of  entering  the  plaintiff's  store ;  and  it  is  equally  true 
that  Willis  and  Ryall  might  have  thrown  the  squib  out  of  the  market- 
house,  which  was  open  on  both  sides  and  at  one  end,  instead  of  toss- 
ing it  across  the  market-house  among  the  people  there  assembled. 
But  in  the  one  case,  as  well  as  in  the  other,  the  innocent  agents  were 
moved  by  fear,  and  had  no  time  to  reflect  upon  the  most  prudent 
course  of  conduct.  It  was  quite  natural,  however,  that  the  boy  should 
flee  to  his  employer  for  protection.  And,  finally,  the  proximate  cause 
of  the  injury  was,  in  both  cases,  an  intelligenUagent. 

In  Guille  v.  Swan,  19  Johns.  381,  10  Am.  Dec.  234,  the  immediate 
actors  in  the  wrong  which  was  done  to  the  plaintiff  were  moved  by 
their  sympathy  for  the  defendant,  who  had  brought  himself  into  a 
perilous  condition  by  ascending  in  a  balloon.  The  balloon  descended 
into  the  plaintiff's  garden,  which  was  near  where  it  had  gone  up,  and 
a  crowd  of  people,  seeing  the  defendant  hanging  out  of  the  car  in 
great  peril,  rushed  into  the  garden  to  relieve  him,  and,  in  doing  so, 
trod  down  the  plaintiff's  vegetables  and  flowers.  For  the  wrong 
done  by  the  crowd,  as  well  as  for  the  injury  done  by  himself,  the 
defendant  was  held  answerable  as  a  trespasser.  Although  the  ascent 
was  not  an  illegal,  it  was  a  foolish,  act,  and  the  defendant  ought  to 
have  foreseen  that  injurious  consequences  might  follow.  The  case 
seems  not  to  have  been  put  upon  the  ground  of  a  concert  of  action 
between  the  defendant  and  the  multitude,  but  on  the  ground  that 
the  defendant's  descent,  under  such  circumstances,  would  ordinarily 
and  naturally  draw  a  crowd  of  people  about  him,  either  from  curi- 
osity, or  for  the  purpose  of  rescuing  him  from  a  perilous  situation. 
It  was  added,  however,  that  if  the  defendant  had  beckoned  to  the 
crowd  to  come  to  his  assistance,  they  would  all  have  been  co-tres- 
passers ;  and  the  situation  in  which  the  defendant  had  voluntarily 
and  designedly  placed  himself  was  equivalent  to  a  direct  request  to 
the  crowd  to  follow  him. 

If  the  cases  of  the  squib  and  the  balloon  have  not  gone  beyond  the 
limits  of  the  law,  the  defendant  is  answerable  for  the  injury  which 
he  has  brought  upon  the  plaintiff.  And  there  is  nearly  as  much 


GENERAL  PRINCIPLES.  87 

reason  for  holding  him  liable  for  driving  the  boy  against  the  wine 
cask,  and  thus  destroying  the  plaintiff's  property,  as  there  would  be 
if  he  had  produced  the  same  result  by  throwing  the  boy  upon  the 
cask,  in  which  case  his  liability  could  not  have  been  questioned.  It 
is  not  necessary  to  inquire  whether  the  action  should  be  trespass  or 
case ;  for  this  declaration  may  as  well  be  considered  one  thing  as  the 
other.  It  seems  that  the  plaintiff,  when  before  the  justice,  called  the 
action  trespass;  but  the  declaration  does  not  allege  that  the  act  was 
done  either  vi  et  armis  or  contra  pacem.  Courts  of  record  might 
well  enough  have  been  less  nice  than  they  have  been  about  the  dis- 
tinction between  trespass  and  case.  Seneca  Road  Co.  v.  Auburn  & 
R.  R.  Co.,  5  Hill,  170.  And  clearly,  as  the  pleadings  in  justices'  courts 
are  construed  in  the  most  liberal  manner  for  the  advancement  of 
justice,  this  may  very  well  be  regarded  as  an  action  on  the  case. 
Judgment  affirmed. 

(In  Ricker  v.  Freeman,  50  N.  H.  420,  9  Am.  Rep.  267,  a  schoolboy,  A,  seized 
another,  B,  by  the  arm,  and  swung  him  around  violently  two  or  three  times, 
and  then  let  him  go.  B,  having  been  made  dizzy,  came  violently  against  C, 
who  instantly  pushed  him  away,  and  B  then  came  in  contact  with  a  hook,  and 
was  injured.  B  sued  A,  who  contended  that  as  the  plaintiff  was  not  a  dan- 
gerous missile  or  instrument,  like  the  squib  in  Scott  v.  Shepherd,  C  had  no 
right  to  push  him  off,  and  therefore  that  A  was  not  liable.  The  court,  how- 
ever, held  A  responsible.  A  similar  case  is  Reynolds  v.  Pierson,  29  Ind.  App. 
273,  64  N.  E.  484.  In  Markley  v.  Whitman,  95  Mich.  236,  54  N.  W.  763,  20 
L.  R.  A.  55,  35  Am.  St.  Rep.  558,  some  school  boys,  by  mutual  consent,  formed 
in  line  behind  one  another,  then  stole  up  behind  another  boy,  and  then, 
the  end  one  giving  a  push,  it  was  transmitted  through  the  line,  so  that  the  head 
one  was  impelled  forcibly  against  the  victim  of  the  game,  who  was  severely 
injured.  The  boy  at  the  head  of  the  line  was  sued,  and  held  liable,  though  he 
claimed  that  he  did  not  push,  but  merely  "was  pushed."  In  Chambers  v.  Car- 
roll, 199  Pa.  371,  49  Atl.  128,  two  boys  were  sitting  on  a  log  in  a  vacant  lot. 
X  drove  in  carelessly,  so  that  unless  they  moved  he  would  pass  over  them. 
In  their  efforts  to  escape  one  of  them  moved  the  log,  the  result  of  which  was, 
however,  to  throw  the  other  under  the  team.  X's  negligence  was  held  to  be 
the  proximate  cause  of  the  injury.  In  Tuttle  v.  Atlantic  City  R.  Co.,  66  N.  J. 
Law,  327,  49  Atl.  450,  54  L.  R.  A.  582,  88  Am.  St  Rep.  491,  the  rule  is  laid 
down  that  where  one  by  negligence  puts  another  under  reasonable  apprehen- 
sion of  personal  injury,  and  in  a  reasonable  effort  to  escape  the  latter  sustains 
such  injury,  the  person  guilty  of  negligence  is  liable.) 


(99  N.  Y.  158,  1  N.  E.  608,  52  Am.  Rep.  12.) 
LOWERT  v.  MANHATTAN  RY.  CO.  (in  part). 
(Court  of  Appeals  of  New  York.    May  5,  1885.) 

NEGLIGENCE— PROXIMATE  OB  REMOTE  CONSEQUENCES. 

Fire  from  defendant's  locomotive  on  its  elevated  railway  fell  upon  a 
horse  attached  to  a  wagon  in  the  street  below,  and  upon  the  hand  of  the 
driver,  causing  the  horse  to  run  away.  The  driver,  after  failing  in  an 
attempt  to  stop  the  horse  by  driving  him  against  a  post  of  the  elevated 


gg  LAW  OF  TORTS. 

railroad,  intentionally  turned  him  against  the  curb-stone  to  arrest  his 
progress ;  but  the  wagon  passed  over  the  curb-stone,  threw  out  the  driver, 
and  ran  over  and  injured  plaintiff.  Held,  that  defendant  was  not  relieved 
from  liability  for  the  injury  to  plaintiff,  even  though  plaintiff  would  not 
have  been  injured  but  for  the  driver's  diversion  of  the  horse  from  the 
natural  course  it  might  have  taken,  and  though  there  might  have  been  an 
error  of  judgment  on  the  driver's  part;  as  it  might  be  assumed  that  by 
the  injury  to  his  hand,  and  the  suddenness  of  the  accident,  the  driver  was  so 
disconcerted  as  to  be  unable  to  manage  and  control  the  horse  as  he  would 
otherwise  have  done. 

Appeal  from  Court  of  Common  Pleas,  City  and  County  of  New 
York,  General  Term. 

Action  by  Joseph  Lowery  against  the  Manhattan  Railway  Company, 
for  personal  injuries  to  plaintiff,  an  infant,  alleged  to  have  been  caused 
by  negligence  on  the  part  of  defendant. 

MILLER,  J.  The  principal  question  arising  upon  this  appeal  re- 
lates to  the  right  of  the  plaintiff  to  recover  for  the  injuries  sustained. 
The  claim  of  the  defendant  is  that  the  cause  of  the  injury  was  too 
remote  to  authorize  a  recovery  of  any  damages  whatever,  and  it  is 
urged  that  the  court  erred  in  denying  the  motion  to  dismiss  the  com- 
plaint made  by  the  defendant's  counsel  on  the  ground  stated,  as  well 
as  in  the  charge  to  the'  jury  that,  if  they  believed  "that  the  coal  and 
ashes  fell  from  the  defendant's  locomotive  through  any  negligence  on 
the  part  of  the  defendant,  its  servants  or  agents,  and,  falling  upon 
the  horse,  caused  him  to  become  unmanageable  and  run  against  the 
plaintiff,  inflicting  injuries  upon  him,  then  the  defendant  is  liable  to 
the  plaintiff  for  his  damages  occasioned  thereby."  The  same  ques- 
tion was  also  raised  by  the  defendant's  counsel  by  a  request  to  the 
judge  to  charge  that  "if  the  jury  believed  the  accident  occurred 
through  the  driver's  error  of  judgment  in  endeavoring  to  obtain  con- 
trol of  his  horse  the  plaintiff  cannot  recover,"  which  was  refused,  and 
an  exception  duly  taken  to  the  decision.  It  is  urged  by  the  appel- 
lant's counsel  that,  where  there  is  an  intermediary  agent  or  medium 
between  the  primary  cause  of  the  injury  and  the  ultimate  result,  tiie 
rule  of  law  to  be  applied  is  that  where  the  original  act  complained  of 
was  not  voluntary  or  intentional,  or  one  of  affirmative  illegality,  or  in 
itself  the  cause  of  criminal  complaint,  but  was  caused  by  negligence, 
the  responsibility  is  limited  to  the  necessary  and  natural  consequences 
of  the  act,  and  that  when,  beyond  that,  they  are  or  may  be  modified 
or  shaped  by  other  causes,  they  are  too  remote  to  be  the  foundation 
of  legal  accountability.  The  injury  sustained  by  the  plaintiff  was 
caused  by  reason  of  fire  falling  from  a  locomotive  of  the  defendant 
upon  a  horse  attached  to  a  wagon  in  the  street  below,  and  upon  the 
hand  of  the  driver.  The  horse  became  frightened,  and  ran  away,  and 
the  driver  attempted  to  guide  his  movements,  and  drive  him  against 
a  post  of  the  elevated  railroad  so  as  to  stop  him.  Failing  to  accom- 
plish 'this,  he  intentionally  turned  the  horse,  and  attempted  to  run 
him  against  the  curbstone  to  make  it  heavy  for  him,  and  so  arrest  his 


GENERAL  PRINCIPLES.  89 

progress;  but  the  wagon  passed  over  the  curb-stone  instead  of  being 
arrested  by  it,  and  threw  the  driver  out,  and  ran  over  and  injured 
the  plaintiff.  It  will  be  seen  that  the  injury  was  not  caused  directly 
by  the  defendant,  but  was  produced  through  the  instrumentality  of 
the  horse  and  driver,  the  latter  of  whom,  it  appears,  was  doing  all 
that  lay  in  his  power,  and  exercising  his  best  judgment,  in  attempting 
to  stop  the  frightened  animal,  and  to  prevent  any  further  injury;  and 
the  question  we  are  called  upon  to  consider  here  is  whether,  in  view 
of  the  fact  that  the  plaintiff  may  have  been  injured  by  reason  of  the 
management  of  the  horse  by  the  driver,  in  consequence  of  which  it 
•was  diverted  from  the  natural  course  it  might  otherwise  have  taken, 
the  defendant  is  relieved  from  responsibility  for  the  result  of  the  ac- 
cident. 

It  may  be  assumed  that  at  that  time  the  driver,  who  was  smarting 
from  the  effects  of  the  burning  coal  which  had  fallen  upon  his  hands, 
and  startled  by  the  suddenness  of  the  accident,  may  have  been  some- 
what disconcerted  by  the  peril  in  which  he  was  placed,  and  therefore 
was  unable  to  manage  and  control  the  infuriated  animal  as  he  might 
otherwise  have  done.  The  law,  however,  makes  allowances  for  mis- 
takes, and  for  errors  of  judgment  which  are  likely  to  happen  upon 
such  an  emergency.  It  does  not  demand  the  same  coolness  and  self- 
possession  which  are  required  when  there  is  no  occasion  for  alarm 
or  a  loss  of  self-control.  Where  a  person  is  traveling  upon  a  train 
of  cars,  and  a  collision  has  taken  place,  or  is  likely  to  occur,  and  he, 
under  the  excitement  of  the  moment,  jumps  from  the  train,  and  there- 
by increases  his  own  danger  and  chances  of  injury,  although  the  act 
of  attempting  to  escape  is  very  hazardous  and  negligent,  yet  it  is  an 
instinctive  act  which  naturally  would  take  place  when  a  person  seeks 
to  avoid  great  peril,  and,  though  wrong  in  itself,  that  fact  does  not 
relieve  the  company  from  liability  if  its  negligent  conduct  and  a  sense 
of  impending  danger  induced  the  act. 

In  the  case  under  consideration  the  driver  was  passing  along  in 
pursuit  of  his  customary  business,  driving  his  horse,  when  suddenly 
the  falling  of  the  fire  upon  himself  and  the  horse  placed  him  in  a 
position  of  great  danger,  and  he  was  justified  in  attempting  to  save 
his  own  life  and  protect  himself  from  injury.  If  he  made  a  mistake 
in  his  judgment,  the  company  was  not  relieved  from  liability.  If  he 
had  allowed  the  horse  to  continue  on  its  own  way,  it  is  by  no  means 
clear  that  a  similar,  if  not  greater,  injury  might  not  have  been  in- 
flicted upon  some  other  person  than  the  plaintiff.  It  is  impossible 
to  determine  what  the  result  might  have  been  in  such  a  case,  and 
therefore  it  is  indulging  in  speculation  to  say  that  the  driver's  act, 
under  the  circumstances,  was  not  the  best  thing  that  could  have  been 
done.  In  such  cases  it  is  difficult  to  disconnect  the  final  injury  from 
the  primary  cause,  and  say  that  the  damages  accruing  are  not  the 
natural  and  necessary  result  of  the  original  wrongful  act.  The  de- 
fendant was  chargeable  with  an  unlawful  act,  which  inflicted  an  in- 
jury upon  the  driver  and  the  horse  in  the  first  instance,  and  ultimately 


90  LAW  OF  TORTS. 

caused  the  injury  sustained  by  the  plaintiff.  The  injury  originally 
inflicted  was  in  the  nature  of  a  trespass,  and  the  result  which  followed 
was  the  natural  consequence  of  the  act.  So  long  as  the  injury  was 
chargeable  to  the  original  wrongful  act  of  the  defendant,  it  is  not 
apparent,  in  view  of  the  facts,  how  it  can  avoid  responsibility.  There 
was  no  such  intervening  human  agency  as  would  authorize  the  con- 
clusion that  it  was  the  cause  of  the  accident,  and  therefore  it  cannot 
be  said  that  the  damages  were  too  remote. 

The  company  would  clearly  be  liable  for  any  direct  injury  arising 
from  the  falling  of  the  burning  coals  upon  the  horse  if  it  had  been 
left  to  pursue  its  o'wn  course  uncontrolled  by  the  driver,  and  there 
would  seem  to  be  no  reason  why  it  would  not  be  equally  liable  when 
the  driver  seeks  to  control  the  horse,  and  exercises  his  best  judgment 
in  endeavoring  to  prevent  injury.  That  he  failed  to  do  so  for  want 
of  strength,  or  by  reason  of  an  error  of  judgment,  does  not  prevent 
the  application  of  the  principle  which  controls  in  such  a  case.  It  may, 
we  think,  be  assumed  that  such  an  accident  might  occur  in  a  crowded 
street  where  conveyances  are  constantly  passing,  and  that  the  driver 
of  the  horse,  who  might  possibly  be  injured  by  the  defendant's  un- 
lawful act,  would  seek  to  guide  the  animal,  and,  if  possible,  prevent 
unnecessary  injury.  The  action  of  the  driver,  in  view  of  the  exi- 
gency of  the  occasion,  whether  prudent  or  otherwise,  may  well  be 
considered  as  a  continuation  of  the  original  act  which  was  caused  by 
the  negligence  of  the  defendant,  and  the  defendant  was  liable  as 
much  as  it  would  have  been  if  the  horse  had  been  permitted  to  pro- 
ceed without  any  control  whatever.  We  think  that  the  damages  sus- 
tained by  the  plaintiff  were  not  too  remote,  and  that  the  wrongful 
act  of  the  defendant  in  allowing  the  coals  to  escape  from  the  locomo- 
tive, thus  causing  the  horse  to  become  frightened  and  run,  was  the 
proximate  cause  of  the  injury,  and  that  the  running  away  of  the 
horse,  and  the  collision  with  the  plaintiff,  were  the  natural  and  prob- 
able consequences  of  the  negligence  of  the  defendant.  These  views 
are  fully  sustained  by  the  decisions  of  the  courts.  Scott  v.  Shepherd, 
2  W.  Bl.  892 ;  Lynch  v.  Nurdin,  I  Adol.  &  E.  (N.  S.)  29 ;  Former  v. 
Geldmecher,  13  Reporter,  790;  Vaughan  v.  Menlove,  32  E.  C.  L. 
219,  740;  Guille  v.  Swan,  19  Johns.  381,  10  Am.  Dec.  234;  Thomas  v. 
Winchester,  6  N.  Y.  397,  57  Am.  Dec.  455 ;  Vandenburgh  v.  Truax,  4 
Denio,  464,  47  Am.  Dec.  268 ;  Webb  v.  Railroad  Co.,  49  N.  Y.  420,  10 
Am.  Rep.  389 ;  Pollett  v.  Long,  56  N.  Y.  200 ;  Putnam  v.  Railroad  Co., 
55  N.  Y.  108,  14  Am.  Rep.  190. 

We  do  not  deem  it  necessary  to  examine  these  cases  in  detail,  and, 
while  it  may  be  said  that  in  some  of  them  the  injury  was  caused  by 
the  positive  unlawful  act  of  the  defendant  at  the  beginning,  in  others 
the  original  act  was  lawful,  while  the  consequence  which  followed 
resulted  from  the  subsequent  interference  with  the  plaintiff's  rights. 
In  Guille  v.  Swan,  19  Johns.  381,  10  Am.  Dec.  234,  supra,  the  act  of 
setting  up  the  balloon  was  lawful  in  itself,  and  the  injury  which  fol- 
lowed was  the  result  of  its  falling  on  the  premises  of  the  plaintiff  in 


GENERAL  PRINCIPLES.  91 

the  city,  and  attracting  the  attention  of  people  outside,  and  thus  caus- 
ing- the  damages  incurred.  In  the  case  at  bar,  the  falling  of  the  coals 
on  the  horse  and  driver  was  caused  by  the  negligence  of  the  defend- 
ant's servants,  but  it  was,  nevertheless,  a  direct  invasion'  of  the  rights 
of  the  property  and  person  of  the  driver,  and  the  owner  of  the  horse 
and  wagon,  and  produced  the  injury  to  the  plaintiff  the  same  as  the 
falling  of  the  balloon  on  the  plaintiff's  premises  in  the  case  last  cited. 
We  are  unable  to  perceive  any  distinction  between  the  two  cases 
which  would  justify  the  conclusion  that  the  damages  to  the  plaintiff 
here  were  more  remote  than  those  which  were  incurred  in  the  case 
last  cited.  The  principle  which  is  applicable  to  both  cases  is  the  same, 
and  it  is  not  apparent  that  any  distinction  can  be  drawn  between  them 
which  would  relieve  the  defendant  from  responsibility.  It  is  enough 
to  charge  the  defendant  that  it  was  the  author  and  originator  of  the 
wrongful  act  which  produced  the  injury,  and  hence  it  is  liable  for 
the  same  as  one  of  the  natural  consequences  arising  from  the  act  it- 
self. It  is  difficult  to  conceive  any  valid  ground  upon  which  it  can 
be  claimed  that  the  effect  of  the  defendant's  negligence  was  not  a 
probable  and  the  natural  consequence  following  the  same. 

There  was  no  error  in  the  charge  of  the  judge,  or  refusals  to  charge 
as  requested,  or  in  any  ruling  on  the  trial.  The  judgment  was  right, 
and  should  be  affirmed.  All  concur,  except  RAPALLO,  J.,  dissent- 
ing, and  EARL,  J.,  not  voting. 

(See  Laidlaw  v.  Sage,  158  N.  Y.  73,  52  N.  E.  679,  44  L.  R.  A.  216 ;  Deisen- 
rieter  v.  Kraus-Merkel  Co.,  97  Wis.  279,  72  N.  W.  735 ;  Goodlander  Mill  Co.  v. 
Standard  Oil  Co.,  63  Fed.  400,  405,  11  C.  C.  A.  253,  27  L.  R.  A.  583 ;  Lynn  Gas 
etc.,  Co.  v.  Meriden  Ins.  Co.,  158  Mass.  570,  575,  33  N.  E.  690,  20  L.  R.  A.  297, 
35  Am.  St  Rep.  540.) 


(137  N.  Y.  1,  33  N.  E.  142,  19  L.  R.  A.  365,  33  Am.  St.  Rep.  690.) 

GIBNEY  v.  STATE. 
(Court  of  Appeals  of  New  York.     January  17,  1893.) 

DEFECTIVE  BRIDGES— NEGLIGENCE— PROXIMATE  CAUSE. 

Where  a  child  fell  through  defendant's  bridge  Into  a  canal,  In  conse- 
quence of  defendant's  negligence  in  permitting  an  opening  to  remain  un- 
guarded, and  without  contributory  negligence  on  the  part  of  its  parents, 
and  the  father,  in  an  effort  to  rescue  the  child,  plunged  into  the  canal, 
and  both  were  drowned,  the  death  of  the  father,  as  well  as  that  of  the 
child,  must  be  deemed  a  proximate  result  of  defendant's  negligence  in 
maintaining  the  unsafe  bridge.  Though  the  father  intentionally  jumped 
into  the  water,  still  this  was  a  natural  and  instinctive  act  occasioned 
by  the  child's  peril,  and  the  cause  of  it  was  the  culpable  negligence  of 
the  defendant 

Appeal  from  Board  of  Claims. 

Action  by  Nellie  C.  Gibney,  as  administratrix  of  the  goods,  chat- 
tels, and  credits  of  John  F.  Gibney,  deceased,  claimant,  against  the 


92  LAW  OF  TORTS. 

state  of  New  York.  From  a  finding  of  the  board  of  claims  awarding 
$5,000  damages  to  plaintiff  by  reason  of  the  death  of  her  husband, 
John  F.  Gibney,  caused  by  the  negligence  of  defendant,  defendant 
appeals.  Affirmed. 

ANDREWS,  C.  J.  We  have  decided,  on  the  appeal  brought  from 
the  award  of  damages  for  the  death  of  the  infant  son  of  the  plaintiff, 
that  the  evidence  authorized  a  finding  of  negligence  on  the  part  of 
the  state  authorities  in  permitting  the  opening  in  the  bridge,  through 
which  the  boy  fell  into  the  canal,  to  remain  unguarded,  and  also  the 
further  finding  that  there  was  no  contributory  negligence  on  the 
part  of  the  parents  of  the  child,  and  we  therefore  affirmed  the  award. 
The  present  appeal  is  from  an  award  made  for  damages  sustained 
by  the  widow  and  next  of  kin,  arising  from  the  drowning  of  the  plain- 
tiff's husband,  and  the  father  of  the  child,  in  an  attempt  to  rescue 
the  child  from  the  canal,  into  which  the  child  had  fallen.  The  ma- 
terial facts  are  undisputed.  The  plaintiff,  with  her  husband  and 
child,  in  an  evening  in  August,  while  crossing  the  bridge,  met  an  ac- 
quaintance, and  the  parents  stopped  to  talk  with  him.  The  child  re- 
mained within  a  few  feet  of  them,  and  suddenly  fell  through  the  open-, 
ing  in  the  railing  of  the  bridge  into  the  canal  below.  The  father,  as 
soon  as  he  discovered  that  the  boy  was  gone,  plunged  into  the  canal 
to  recover  the  child,  and  both  father  and  son  were  drowned. 

It  is  contended  by  the  attorney  general  that  the  negligence  of  the 
state  in  permitting  the  bridge  to  remain  in  an  unsafe  condition,  while 
it  may  have  been  the  cause  of  the  death  of  the  boy,  cannot  be  regarded 
as  the  cause  of  the  death  of  the  father,  although  it  occurred  in  an  at- 
tempt to  save  the  life  of  the  child.  It  is  doubtless  true  that  except 
for  the  peril  of  the  child,  occasioned  by  his  falling  through  the  bridge 
into  the  canal,  there  would  have  been  no  connection  between  the 
negligence  of  the  state  and  the  drowning  of  the  father.  But  the  peril 
to  which  the  child  was  exposed  was,  as  has  been  found,  the  result 
of  the  negligence  of  the  state,  and  the  peril  to  which  the  father  ex- 
posed himself  was  the  natural  consequence  of  the  situation.  It  would 
have  been  in  contradiction  of  the  most  common  facts  in  human  ex- 
perience if  the  father  had  not  plunged  into  the  canal  to  save  his  child. ' 
But  while  the  immediate  cause  of  the  peril  to  which  the  father  ex- 
posed himself  was  the  peril  of  the  child,  for  the  purpose  of  adminis- 
tering legal  remedies,  the  cause  of  the  peril  in  both  cases  may  be 
attributed  to  the  culpable  negligence  of  the  state  in  leaving  the  bridge 
in  a  dangerous  condition.  There  is  great  difficulty,  in  many  cases, 
in  fixing  the  responsible  cause  of  an  injury.  When  there  is  a  break  in 
the  chain  of  causes,  by  the  intervention  of  a  new  agency,  and  then  an 
injury  happens,  is  it  to  be  attributed  to  the  new  element,  and  is  this 
to  be  treated  as  the  originating  .cause,  to  the  exclusion  of  the  ante- 
cedent one,  without  which  no  occasion  would  have  arisen  for  the  in- 
troduction of  a  new  element?  It  is  impossible  to  formulate  a  rule  on 
the  subject  capable  of  definite  and  easy  application.  The  general 


GENERAL  PRINCIPLES. 


93 


rule  is  that  only  the  natural  and  proximate  results  of  a  wrong  are  those 
of  which  the  law  can  take  notice.  But  where  a  consequence  is  to  be 
deemed  proximate  within  the  rule,  is  the  point  of  difficulty.  In  this 
case  these  elements  are  present:  Culpable  negligence  on  the  part  of 
the  state;  the  falling  of  a  child  into  the  canal  through  the  opening 
which  the  state  negligently  left  in  the  bridge ;  the  natural  and  in- 
stinctive act  of  the  father  in  plunging  into  the  canal  to  rescue  the 
child ;  the  drowning  of  both ;  the  fact  that  such  an  accident  as  that 
which  befell  the  child  might  reasonably  have  been  anticipated  as  the 
result  of  the  condition  of  the  bridge ;  and  the  further  consideration 
that  a  parent  or  other  person  seeing  the  child  in  the  water,  would 
incur  every  reasonable  hazard  for  its  rescue.  We  think  it  may  be 
justly  said  that  the  death,  both  of  the  child  and  parent,  was  the  con- 
sequence of  the  negligence  of  the  state,  and  that  the  unsafe  bridge 
was,  in  a  legal  and  judicial  sense,  the  cause  of  the  drowning  of  both. 
We  can  perceive  no  sound  distinction  between  this  case  and  the  Eck- 
ert  Case,  43  N.  Y.  502,  3  Am.  Rep.  721.  In  that  case  the  railroad 
train  was  being  propelled  at  a  dangerous  speed.  The  negligence 
was  active.  In  this  case  it  consisted  of  an  omission;  that  is,  in  the 
failure  to  originally  construct  the  bridge  properly,  or  permitting  it 
to  become  dangerous.  We  do  not  perceive  how  the  difference  in 
the  circumstances  of  the  negligence  affects  the  question  of  proxi- 
mateness  between  the  cause  and  the  result  so  as  to  distinguish,  in 
this  respect,  the  two  cases.  The  Balloon  Case,  Guille  v.  Swan,  19 
Johns.  381,  10  Am.  Dec.  234,  and  the  case  of  Thomas  v.  Winchester, 
6  N.  Y.  397,  57  Am.  Dec.  455,  give  support  to  our  conclusion.  The 
judgment  should  be  affirmed.  All  concur,  except  MAYNARD,  J., 
not  sitting. 


—    (e)    Intervening  Human  Agent,  under  Other  Circumstances. 

(171  Mass  536,  51  N.  E.  1,  41  L.  R.  A.  794.) 

STONE  v.  BOSTON  &  A.  R.  CO.  (in  part). 

(Supreme  Judicial  Court  of  Massachusetts.    Worcester.    July  1,  1898.) 

1.  NEGLIGENCE— DESTRUCTION  OF  BUILDINGS  BY  FIBE— PROXIMATE  CAUSE— RE- 
MOTENESS—EVIDENCE. 

Defendant's  railway  station,  freight  house,  and  a  platform  used  mostly 
for  storing  oil  till  the  consignees  for  whom  the  railroad  had  brought  It 
should  remove  it,  were  situated  across  the  street  from  plaintiff's  buildings. 
The  platform  had  become  thoroughly  saturated  with  oil  leaking  from  the 
barrels.  A  teamster  not  connected  with  defendant  brought  goods  to  be 
shipped  by  it,  and,  in  lighting  his  pipe,  threw  on  the  ground  a  match, 
which  immediately  started  a  fire,  which  spread  to  some  barrels  of  oil 
standing  on  the  platform,  and  soon  destroyed  the  plaintiff's  buildings. 
All  this  oil  had  been  on  the  platform  for  a  longer  time  than  48  hours, 
which  was  prohibited  by  statute.  Plaintiff's  buildings  would  probably 
not  have  been  burned  if  this  oil  had  not  been  on  the  platform.  Held, 


94  LAW  OF  TORTS. 

that  the  starting  of  the  fire  could  not  be  deemed  a  natural  and  probable 
consequence  of  the  defendant's  negligent  act  in  leaving  the  barrels  of 
oil  upon  the  platform,  and  that  therefore  plaintiff  could  not  recover. 

2.  SAME— ACT  OF  INTERVENING,  INTELLIGENT,  RESPONSIBLE  PERSON. 

The  rule  that,  where  an  Intelligent,  responsible  human  being  has  inter- 
vened between  the  original  cause  and  the  resulting  damage,  the  law  will 
not  look  back  beyond  him,  Is  not  true,  where  it  was  the  duty  of  the 
original  wrongdoer  to  anticipate  and  provide  against  such  intervention, 
because  such  intervention  was  a  thing  likely  to  happen  in  the  ordinary 
course  of  events.  But  where  such  intervening  act  is  not  to  be  anticipated 
as  a  probable  result,  the  original  wrongdoer  is  not  accountable  therefor. 

3.  SAME— TRIAL— DIRECTING  VERDICT. 

In  an  action  for  negligence,  where  the  court  is  able  to  say  that  the  in- 
jury is  the  remote,  and  not  the  proximate,  result  of  defendant's  acts,  it  is 
proper  to  so  direct  the  Jury. 

4.  SAME— CONCURRENT  ACTS  OF  PARTIES. 

Where  defendant  was  negligent  in  keeping  oil  upon  a  platform  which 
was  subsequently  fired  by  the  carelessness  of  another,  the  acts  of  defendant 
and  tue  third  person  are  not  concurrent,  and  they  are,  therefore,  not  to 
be  deemed  co-tort-feasors,  and  so  liable,  both  of  them,  for  the  resulting 
damage. 

Exceptions  from  Superior  Court,  Worcester  County;  John  Hop- 
kins, Judge. 

Action  by  Edward  E.  Stone  against  the  Boston  &  Albany  Railroad 
Company.  From  a  verdict  for  defendant  directed  by  the  clerk,  plain- 
tiff brings  exceptions.  Exceptions  overruled. 

ALLEN,  J.  This  is  an  action  of  tort  to  recover  for  the  loss  of  the 
plaintiff's  buildings  and  other  property  by  fire,  under  the  following 
circumstances :  The  defendant  owned  and  operated  a  branch  rail- 
road extending  from  its  main  line  at  South  Spencer  to  the  village  of 
Spencer,  and  had  at  the  Spencer  terminus  a  passenger  station,  a 
freight  house,  and  a  freight  yard,  all  adjoining  a  public  street.  On  the 
side  of  the  freight  house,  and  extending  beyond  it  about  75  feet,  was 
a  wooden  platform  about  8  feet  wide  and  4  feet  high,  placed  upon 
posts  set  in  the  ground,  the  underside  being  left  open  and  exposed. 
The  main  tracks  ran  along  on  the  front  side  of  this  platform  and 
freight  house,  and  on  the  rear  of  the  platform  there  was  a  freight 
track,  so  near  as  to  be  convenient  to  load  and  unload  cars  from  and 
upon  it.  The  plaintiff  was  engaged  in  the  lumber  business,  buying 
at  wholesale  and  selling  at  wholesale  and  retail,  manufacturing  boxes, 
etc.  His  place  of  business  comprised  several  buildings,  some  of  which 
were  across  the  street  from  the  defendant's  buildings,  and  his  prin- 
cipal buildings  were  about  75  feet  from  the  point  on  the  defendant's 
premises,  beneath  the  platform,  where  the  fire  originated.  The  evi- 
dence tended  to  show  that  the  platform  was  mostly  used  for  the  stor- 
ing of  oil  which  had  been  brought  upon  the  railroad,  until  it  was 
taken  away  by  the  consignees;  and  that  the  platform  had  become 
thoroughly  saturated  with  oil,  which  had  leaked  from  the  barrels, 
and  which  not  only  saturated  the  platform,  but  dripped  to  the  ground 


GENERAL  PRINCIPLES.  95 

beneath.  More  or  less  rubbish  accumulated  from  time  to  time  under 
the  platform,  and  was  occasionally  carried  away.  The  evidence  tend- 
ed to  show  that  this  space  below  had  been  cleaned  out  two  or  three 
weeks  before  the  fire.  On  the  day  of  the  fire,  September  13,  1893, 
from  25  to  30  barrels  of  oil  and  oil  barrels  were  upon  the  platform. 
Some  were  nearly  or  quite  empty,  some  were  partly  full,  but  the  most 
of  them  were  probably  full  and  nearly  full.  The  only  evidence  to  show 
how  the  fire  originated  tended  to  prove  that  one  Casserly,  a  team- 
ster, brought  a  load  of  boots  to  be  shipped  upon  a  car  which  was 
standing  upon  the  track  on  the  rear  side  of  the  platform ;  that  he 
was  smoking  a  pipe ;  that  he  stepped  into  the  car,  to  wait  for  the 
defendant's  foreman  of  the  yard,  who  was  to  help  him  unload  the 
boots ;  that,  in  stepping  in,  he  stubbed  his  toe,  and  knocked  some  of 
the  ashes  and  tobacco  out  of  his  pipe ;  that  he  relighted  the  pipe  with 
a  match,  and  threw  the  match  down ;  that  at  this  time  he  was  stand- 
ing in  the  door  of  the  car,  facing  the  platform.  It  must  be  assumed 
upon  the  evidence  that  the  fire  caught  upon  the  ground  underneath 
the  platform  from  the  match  thrown  down  by  Casserly.  All  efforts 
to  extinguish  the  fire  failed.  It  spread  fast,  and  was  almost  imme- 
diately upon  the  top  of  the  platform, — running  up  a  post,  according 
to  one  of  the  witnesses, — and  very  soon  it  reached  the  barrels  of  oil, 
which  began  to  explode,  and  the  fire  communicated  to  the  plaintiff's 
buildings,  and  they  were  burned.  There  was  evidence  tending  to 
show  that  all  of  the  oil  had  been  upon  the  platform  for  a  longer  time 
than  48  hours.  According  to  the  testimony  of  the  plaintiff,  the  plat- 
form was  never,  to  his  knowledge,  empty  of  oil  or  oil  barrels.  It  was 
completely  saturated  with  oil,  and  that  general  condition  of  things,  so 
far  as  the  platform  was  concerned,  had  existed  for  eight  years, — ever 
since  he  himself  had  been  there.  Upon  the  evidence  introduced  by 
the  plaintiff,  the  court  directed  a  verdict  for  the  defendant. 

The  plaintiff,  in  substance,  contends  before  us  that  the  defend- 
ant was  negligent  in  storing  oil  upon  the  platform,  taking  into  consid- 
eration the  condition  of  the  platform,  and  of  the  ground  and  material 
under  it,  and  the  length  of  time  during  which  the  oil  had  been  allowed 
to  remain  there;  that,  irrespectively  of  the  question  of  negligence, 
the  platform  with  the  oil  upon  it  constituted  a  public  nuisance,  es- 
pecially in  view  of  Pub.  St.  .c.  102,  §  74,  providing  that  oil  com- 
posed wholly  or  in  part  of  any  of  the  products  of  petroleum  shall 
not  be  allowed  to  remain  on  the  grounds  of  a  railroad  corporation  in  a 
town  for  a  longer  time  than  48  hours  without  a  special  permit  from 
the  selectmen;  that  the  defendant  is  responsible  for  the  damage  re- 
sulting from  the  public  nuisance,  whether  the  act  of  starting  the  fire 
was  due  to  a  third  person  or  not;  and  that  the  question  should  have 
been  submitted  to  the  jury  whether  the  damage  to  the  plaintiff's 
property  was  the  natural  and  proximate  consequence  of  the  defend- 
ant's tort. 


gti  LAW  OF  TORTS. 

Upon  the  evidence,  the  supposed  tort  of  the  defendant,  whether  it 
be  called  "negligence"  or  "nuisance,"  appears  to  have  been  limited 
to  the  keeping  of  oil  too  long  upon  the  platform.  Assuming  this  oil 
to  have  been  a  product  of  petroleum,  and  so  within  the  statute  cited, 
nevertheless  the  defendant,  as  a  common  carrier,  was  bound  to  trans- 
port it  and  deliver  it  to  the  consignees.  The  oil,  as  is  well  known, 
was  an  article  of  commerce,  and  in  extensive  use,  and  the  defendant 
was  bound  to  transport  it,  and  keep  it  for  a  reasonable  time,  after  its 
arrival  in  Spencer,  in  readiness  for  delivery.  There  was  no  evidence 
that  the  oil  was  liable  to  spontaneous  ignition,  or  that  the  platform 
was  an  unsuitable  place  for  its  temporary  storage  till  it  could  be  re- 
moved, or  that  the  defendant  could  have  prevented  the  escape  of  oil 
upon  the  platform  from  leaky  barrels.  But  we  may  assume  without 
discussion  that  the  defendant  was  in  fault  in  keeping  the  oil  there 
so  long,  and  that,  if  the  oil  had  been  removed  within  48  hours  after 
its  arrival,  the  fire  would  probably  not  have  been  attended  with  such 
disastrous  consequences. 

Nevertheless,  the  question  remains — and,  in  our  view,  this  be- 
comes the  important  and  decisive  question  of  the  case — whether,  as- 
suming that  the  defendant  was  thus  in  fault,  the  plaintiff  introduced 
any  evidence,  which  would  warrant  any  finding  by  the  jury  that  the 
damage  to  his  property  was  a  consequence  for  which  the  defendant 
is  responsible;  or,  in  other  words,  whether  the  act  of  Casserly  in 
starting  the  fire  was  such  a  consequence  of  the  defendant's  original 
wrong  in  allowing  the  oil  to  remain  upon  the  platform  that  the  de- 
fendant is  responsible  to  the  plaintiff  for  it. 

The  rule  is  very  often  stated  that,  in  law,  the  proximate,  and  not 
the  remote,  cause  is  to  be  regarded ;  and,  in  applying  this  rule,  it  is 
sometimes  said  that  the  law  will  not  look  back  from  the  injurious 
consequence  beyond  the  last  sufficient  cause,  and  especially  that, 
where  an  intelligent  and  responsible  human  being  has  intervened 
between  the  original  cause  and  the  resulting  damage,  the  law  will 
not  look  back  beyond  him.  This  ground  of  exonerating  an  original 
wrongdoer  may  be  found  discussed  or  suggested  in  the  following  de- 
cisions and  text-books,  among  others:  Clifford  v.  Cotton  Mills,  146 
Mass.  47,  15  N.  E.  84,  4  Am.  St.  Rep.  279;  Elmer  v.  Fessenden,  151 
Mass.  359,  24  N.  E.  208,  5  L.  R.  A.  724;  Hayes  v.  Inhabitants  of 
Hyde  Park,  153  Mass.  514,  27  N.  E.  522,  12  L.  R.  A.  249;  Freeman 
v.  Accident  Ass'n,  156  Mass.  351,  30  N.  E.  1013,  17  L.  R.  A.  753; 
Lynn  Gas  &  Electric  Co.  v.  Meriden  Fire  Ins.  Co.,  158  Mass.  570, 
33  N.  E.  690,  20  L.  R.  A.  297,  35  Am.  St.  Rep.  540;  Insurance  Co. 
v.  Tweed,  7  Wall.  44,  19  L.  Ed.  65 ;  Railroad  Co.  v.  Kellogg,  94  U. 
S.  469,  24  L.  Ed.  256;  Railroad  Co.  v.  Hickey,  166  U.  S.  521,  17  Sup. 
Ct.  661,  41  L.  Ed.  .1101 ;  Reiper  v.  Nichols,  31  Hun,  491  ;  Read  v. 
Nichols,  118  N.  Y.  224,  23  N.  E.  468,  7  L.  R.  A.  130;  Mars  v.  Presi- 
dent, etc.,  54  Hun,  625,  8  N.  Y.  Supp.  107;  Leavitt  v.  Railroad  Co., 
89  Me.  509,  36  Atl.  998,  36  L.  R.  A.  382;  Cuff  v.  Railroad  Co.,  35 


GENERAL  PRINCIPLES.  97 

N.  J.  Law,  17,  10  Am.  Rep.  205 ;  Curtin  v.  Somerset,  140  Pa.  70,  21 
All.  244;  Railroad  Co.  v.  Salmon,  39  N.  J.  Law,  299;  Pennsylvania 
Co.  v.  Whitlock,  99  Ind.  16,  50  Am.  Rep.  71 ;  Goodlander  Mill  Co. 
v.  Standard  Oil  Co.,  n  C.  C.  A.. 253,  63  Fed.  400,  405,  27  L.  R.  A. 
583;  Shear.  &  R.  Neg.  §§  38,  666;  Whart.  Neg.  §  134  et  seq.  It 
cannot,  however,  be  considered  that  in  all  cases  the  intervention 
even  of  a  responsible  and  intelligent  human  being  will  absolutely 
exonerate  a  preceding  wrongdoer.  Many  instances  to  the  contrary 
have  occurred,  and  these  are  usually  cases  where  it  has  been  found 
that  it  was  the  duty  of  the  original  wrongdoer  to  anticipate  and  pro- 
vide against  such  intervention,  because  such  intervention  was  a  thing 
likely  to  happen  in  the  ordinary  course  of  events.  Such  was  the  case 
of  Lane  v.  Atlantic  Works,  in  Mass.  136,  where  it  was  found  by 
the  jury  that  the  meddling  of  young  boys  with  a  loaded  truck  left  in 
a  public  street  was  an  act  which  the  defendants  ought  to  have  ap- 
prehended and  provided  against,  and  the  verdict  for  the  plaintiff  was 
allowed  to  stand.  In  the  carefully  expressed  opinion  by  Mr.  Justice 
Colt  the  court  say:  "In  actions  of  this  description  the  defendant  is 
liable  for  the  natural  and  probable  consequences  of  his  negligent 
act  or  omission.  The  injury  must  be  the  direct  result  of  the  mis- 
conduct charged;  but  it  will  not  be  considered  too  remote  if,  ac- 
cording to  the  usual  experience  of  mankind,  the  result  ought  to  have 
been  apprehended.  The  act  of  a  third  person,  intervening  or  con- 
tributing a  condition  necessary  to  the  injurious  effect  of  the  original 
negligence,  will  not  excuse  the  first  wrongdoer,  if  such  act  ought  to 
have  been  foreseen.  The  original  negligence  still  remains  a  culpable 
and  direct  cause 'of  the  injury.  The  test  is  to  be  found  in  the  probable 
injurious  consequences  which  were  to  be  anticipated,  not  in  the  num- 
ber of  subsequent  events  and  agencies  which  might  arise."  Accord- 
ing to  this  statement  of  the  law,  the  questions  in  the  present  case  are : 
Was  the  starting  of  the  fire  by  Casserly  the  natural  and  probable 
consequence  of  the  defendant's  negligent  act  in  leaving  the  oil  upon 
the  platform  ?  According  to  the  usual  experience  of  mankind,  ought 
this  result  to  have  been  apprehended?  The  question  is  not  whether 
it  was  a  possible  consequence,  but  whether  it  was  probable;  that  is, 
likely  to  occur,  according  to  the  usual  experience  of  mankind.  That 
this  is  the  true  test  of  responsibility,  applicable  to  a  case  like  this, 
has  been  held  in  very  many  cases,  according  to  which  a  wrongdoer  is 
not  responsible  for  a  consequence  which  is  merely  possible,  accord- 
ing to  occasional  experience,  but  only  for  a  consequence  which  is 
probable,  according  to  ordinary  and  usual  experience.  One  is  bound 
to  anticipate  and  provide  against  what  usually  happens  and  what  is 
likely  to  happen ;  but  it  would  impose  too  heavy  a  responsibility  to 
hold  him  bound  in  like  manner  to  guard  against  what  is  unusual  and 
unlikely  to  happen,  or  what,  as  it  is  sometimes  said,  is  only  remotely 
and  slightly  probable.  A  high  degree  of  caution  might,  and  perhaps 
CHASE  (2o  ED.) — 1 


98  LAW  OF  TORTS. 

would,  guard  against  injurious  consequences  which  are  merely  pos- 
sible; but  it  is  not  negligence,  in  a  legal  sense,  to  omit  to  do  so.  There 
may  not  always  have  been  entire  consistency  in  the  application  of 
this  doctrine ;  but,  in  addition  to  cases  of  boys  meddling  with  things 
left  in  a  public  street,  courts  have  also  held  it  competent  for  a  jury 
to  find  that  the  injury  was  probable,  although  brought  about  by  a 
new  agency,  when  heavy  articles  left  near  an  opening  in  the  floor  of 
an  unfinished  building,  or  in  the  deck  of  a  vessel,  were  accidentally 
jostled  so  that  they  fell  upon  persons  below  (McCauley  v.  Norcross, 

155  Mass.  584,  30  N.  E.  464;  The  Joseph  B.  Thomas  [D.  C.]  81  Fed. 
578) ;  when  sheep,  allowed  to  escape  from  a  pasture,  and  stray  away 
in  a  region  frequented  by  bears,  were  killed  by  the  bears  (Oilman 
v.  Noyes,  57  N.  H.  627) ;  and  when  a  candle  or  match  was  lighted  by 
a  person  in  search  of  a  gas  leak,  with  a  view  to  stop  the  escape  of  gas 
(Koelsch  v.  Philadelphia  Co.,  152  Pa.  355,  25  Atl.  522,  18  L.  R.  A. 
759,  34  Am.  St.  Rep.  653) ;    and  in  other  cases  not  necessary  to  be 
specially  referred  to.    In  all  of  these  cases  the  real  ground  of  decision 
has  been  that  the  result  was  or  might  be  found  to  be  probable,  ac- 
cording to  common  experience.     Without  dwelling  upon  other  au- 
thorities in  detail,  we  will  mention  some  of  those  in  which  substan- 
tially this  view  of  the  law  has  been  stated:    Davidson  v.  Nichols,  u 
Allen,  514;   McDonald  v.  Snelling,  14  Allen,  290,  92  Am.  Dec.  768; 
Tutein  v.  Hurley,  98  Mass.  211,  93  Am.  Dec.  154;  Hoadley  v.  Trans- 
portation Co.,  115  Mass.  304,  15  Am.  Rep.  106;   Hill  v.  Winsor,  118 
Mass.  251 ;    Derry  v.  Flitner,  Id.  131 ;    Freeman  v.  Accident  Ass'n, 

156  Mass.  351,  30  N.  E.  1013,  17  L.  R.  A.  753;   Spade  v.  Railroad 
Co.,  168  Mass.  285,  47  N.  E.  88,  38  L.  R.  A.  512,  60  Am.  St.  Rep.  393, 
and  cases  there  cited;   Cosulich  v.  Oil  Co.,  122  N.  Y.  118,  25  N.  E. 
259,  19  Am.  St.  Rep.  475  ;  Rhodes  v.  Dunbar,  57  Pa.  274,  98  Am.  Dec. 
221 ;    Hoag  v.  Railroad,  85  Pa.  293,  27  Am.  Rep.  653 ;    Behling  v. 
Pipe  Lines,  160  Pa.  359,  28  Atl.  777,  40  Am.  St.  Rep.  724;    Good- 
lander  Mill  Co.  v.  Standard  Oil  Co.,  n  C.  C.  A.  253,  63  Fed.  400,  405, 
406,  27  L.  R.  A.  583;    Haile's  Curator  v.  Railway  Co.,  9  C.  C.  A. 
134,  60  Fed.  557,  23  L.  R.  A.  774;  Clark  v.  Chambers,  3  Q.  B.  Div. 
327;  Whart.  Neg.  (2d  Ed.)  §§  74,  76,  78,  138-145,  155,  955;   Cooley, 
Torts,  *6o,,  *7o;   Add.  Torts,  *4o;    Pol.  Torts,  *388;    Mayne,  Dam. 
*39>  *47>  *4-8.    For  a  recent  English  case  involving  a  case  of  remote- 
ness, see  Sngelhart  v.  Farrant  [1897]  I  Q.  B.  240.    The  rule  exempt- 
ing a  slanderer  from  damages  caused  by  repetition  of  his  words  rests 
on  the  same  ground.     Hastings  v.  Stetson,  126  Mass.  329,  30  Am. 
Rep.  683;    Shurtleff  v.  Parker,   130  Mass.  293,  39  Am.  Rep.  454; 
Elmer  v.  Fessenden,  151  Mass.  359,  24  N.  E.  208,  5  L.  R.  A.  724. 

Tried  by  this  test,  the  defendant  is  not  responsible  for  the  conse- 
quences of  Casserly's  act.  There  was  no  close  connection  between 
it  and  the  defendant's  negligence.  There  was  nothing  to  show  that 
such  a  consequence  had  ever  happened  before,  during  the  eight  years 


GENERAL   PRINCIPLES.  99 

covered  by  the  plaintiff's  testimony,  or  that  there  were  any  exciting 
circumstances  which  made  it  probable  that  it  would  happen.  It  was, 
of  course,  possible  that  some  careless  person  might  come  along,  and 
throw  down  a  lighted  match,  where  a  fire  would  be  started  by  it. 
This  might,  indeed,  have  happened  upon  the  plaintiff's  own  premises, 
or  in  any  other  place  where  inflammable  materials  were  gathered. 
But  it  was  not  according  to  the  usual  and  ordinary  course  of  events. 
In  failing,  to  anticipate  and  guard  against  such  an  occurrence  or  ac- 
cident, the  defendant  violated  no  legal  duty  which  it  owed  to  the 
plaintiff.  What  qualification,  if  any,  of  this  doctrine,  should  be  made 
in  case  of  the  storage  of  high  explosives,  like  gunpowder  and  dyna- 
mite, we  do  not  now  consider.  See  Rudder  v.  Koopmann,  116  Ala. 
332,  22  South.  601,  37  L.  R.  A.  489;  Kinney  v.  Koopmann,  116  Ala. 
310,  22  South.  593,  37  L.  R.  A.  497,  67  Am.  St.  Rep.  119,  and  cases 
there  cited;  Rhodes  v.  Dunbar,  57  Pa.  274,  290,  98  Am.  Dec.  221. 

The  plaintiff,  however,  contends  that  this  question  should  have 
been  submitted  to  the  jury.  This  course  would  have  been  necessary 
if  material  facts  had  been  in  dispute.  But  where,  upon  all  the  evi- 
dence, the  court  is  able  to  see  that  the  resulting  injury  was  not  prob- 
able, but  remote,  the  plaintiff  fails  to  make  out  his  case,  and  the  court 
should  so  rule,  the  same  as  in  cases  where  there  is  no  sufficient  proof  of 
negligence.  McDonald  v.  Snelling,  14  Allen,  290,  299,  92  Am.  Dec.  768. 
It  is  common  practice  to  withdraw  cases  from  the  jury  on  the  ground 
that  the  damages  are  too  remote.  Hammond  Co.  v.  Bussey,  20  Q.  B. 
Div.79,89 ;  Read  v.  Nichols,  118  N.  Y.  224,  23  N.  E.  468,  7  L.  R.  A.  130; 
Cuff-  v.  Railroad  Co.,  35  N.  J.  Law,  17,  10  Am.  Rep.  205 ;  Behling  v. 
Pipe  Lines,  160  Pa.  359,  28  Atl.  777,40  Am.  St.  Rep.  724;  Good- 
lander  Mill  Co.  v.  Standard  Oil  Co.,  n  C.  C.  A.  253,  63  Fed.  400, 
405,  406,  27  L.  R.  A.  583 ;  Pennsylvania  Co.  v.  Whitlock,  99  Ind. 
1 6,  50  Am.  Rep.  71;  Carter  v.  Towne,  103  Mass.  507;  Hoadley  v. 
Transportation  Co.,  115  Mass.  304,  15  Am.  Rep.  106;  Hutchinson  v. 
Gaslight  Co.,  122  Mass.  219;  Elmer  v.  Fessenden,  151  Mass.  359, 
24  N.  E.  208,  5  L.  R.  A.  724. 

The  plaintiff  further  contends  that  the  negligence  of  the  defendant 
in  keeping  the  oil  upon  the  platform  was  concurrent  with  the  care- 
less act  of  Casserly,  and  that,  therefore,  it  was  a  case  where  two 
wrongdoers,  acting  at  the  same  time,  contributed  to  the.  injurious 
result.  But  this  is  not  a  just  view  of  the  matter.  The  negligence  of 
the  defendant  preceded  that  of  Casserly,  and  was  an  existing  fact 
when  he  intervened,  just  as  in  Lane  v.  Atlantic  Works,  in  Mass. 
136,  the  negligence  of  the  defendants  in  leaving  their  loaded  truck 
in  the  street  preceded  that  of  the  boys  who  meddled  with  it. 

Without  considering  other  grounds  urged  by  the  defendant,  a 
majority  of  the  court  is  of  opinion  that,  upon  the  evidence,  the  de- 
fendant was  not  bound,  as  a  matter  of  legal  duty,  to  anticipate  and 
guard  against  an  act  like  that  of  Casserly,  he  being  a  stranger  com- 


100  LAW  OF  TORTS. 

ing  upon  the  defendant's  premises  for  his  own  purposes  and  in  his 
own   right.     Exceptions  overruled. 

(See,  also,  Mahogany  v.  Ward,  16  R.  I.  479,  17  Atl.  860,  27  Am.  St.  Rep.  753 ; 
Goodlander  Mill  Co.  v.  Standard  Oil  Co.,  63  Fed.  400,  11  C.  C.  A.  253,  27  L 
R.  A.  583.  It  is  frequently  held,  as  in  the  case  of  Milwaukee,  etc.,  R.  Co.  v. 
Kellogg,  94  U.  S.  469,  24  L.  Ed.  256,  that  the  question  whether  a  cause  is  proxi- 
mate or  remote  is  ordinarily  for  the  jury  to  decide.  But  where  the  evidence  is 
such  as  to  leave  no  room  for  difference  of  opinion  among  reasonable  men  that 
the  cause  is  proximate,  or  that  it  is  remote,  it  is  common  practice  for  the  court 
to  decide  the  matter.  Cole  v.  German  Sav.,  etc.,  Society,  124  Fed.  113,  59  C. 
C.  A.  593 ;  Mo.  Pac.  R.  Co.  v.  Columbia,  65  Kan.  390,  69  Pac.  338,  58  L.  R.  A. 
399 ;  Schumaker  v.  St.  Paul,  etc.,  R.  Co.,  46  Minn.  39,  48  N.  W.  559,  12  L.  R. 
A.  257 ;  Van  Inwegeu  v.  Port  Jervis,  etc.,  R.  Co.,  165  N.  Y.  625,  58  N.  E.  878 ; 
21  Am.  &  Eng.  Enc.  of  Law  [2d  Ed.]  508,  509. 

When  an  injury  is  the  result  of  two  concurrent  causes,  the  party  responsible 
for  one  of  these  causes  is  not  exempt  from  liability  because  the  person  who  is 
responsible  for  the  other  cause  may  be  equally  liable.  Lake  v.  Millikcn.  C.'J 
Me.  240,  16  Am.  Rep.  456 ;  Murray  v.  Boston  Ice  Co.,  180  Mass.  105,  61  N.  K, 
1001 ;  Ring  v.  City  of  Cohoes,  77  N.  Y.  83,  33  Am.  Rep.  574 ;  Slater  v.  Mer- 
sereau,  64  N.  Y.  138 ;  Cooley  on  Torts  [2d  Ed.]  89,  90.) 


(3  Q.  B.  Div.  327.) 

CLARK  v.  CHAMBERS. 

(Queen's  Bench  Division.    April  15,  1878.) 

NEGLIGENCE— PROXIMATE  OB  REMOTE  CONSEQUENCES. 

Land  used  by  defendant  as  a  place  for  athletic  sports  abutted  on  a  pri- 
vate road,  consisting  of  a  carriage-way  and  footway,  and  leading  also 
to  premises  of  others.  To  prevent  persons  driving  vehicles  up  to  the 
fence  surrounding  his  premises,  and  overlooking  the  sports,  defendant 
placed  a  barrier  across  the  road,  but  left  in  the  middle  of  the  carriage- 
way a  space  through  which  vehicles  could  pass,  which  was  closed  by  a 
pole  at  times  when  the  sports  were  going  on.  A  part  of  the  barrier,  armed 
with  spikes,  was  removed  from  the  carriage-way  by  some  person  other 
than  defendant,  without  his  authority,  and  was  placed  in  an  upright  posi- 
tion across  the  footpath.  Plaintiff,  passing  along  the  road  at  night,  from 
one  of  the  houses  to  which  it  led,  passed  safely,  feeling  his  way,  through 
the  opening  in  the  middle  of  the  barrier,  and,  being  wholly  unaware  that 
there  was  any  obstruction  on  the  footpath,  as  it  was  much  too  dark  to  see, 
turned  towards  it,  and  his  eye  came  into  contact  with  one  of  the  spikes, 
and  was  injured.  In  an  action  by  him  against  defendant  therefor,  it  was 
admitted  that  the  erection  of  the  barrier  by  defendant  was  wrongful;  and 
that  plaintiff  was  lawfully  using  the  road ;  and  the  jury  found  that  the 
use  of  that  part  of  the  barrier  armed  with  spikes  was  dangerous  to  per- 
sons using  the  road.  Held,  that  defendant  was  liable  for  the  injury  so 
occasioned  to  plaintiff,  notwithstanding  the  fact  that  the  immediate  cause 
of  the  accident  was  the  act  of  another,  in  removing  the  dangerous  instru- 
ment from  the  carriage-way,  where  defendant  had  placed  it,  to  the  foot- 
path. 

Reserved  Case. 

Action  by  Clark  against  Chambers  for  personal  injuries  to  plaintiff, 
alleged  to  have  been  caused  by  defendant's  negligence.     At  the  trial, 


GENERAL  PRINCIPLES.  101 

before  the  lord  chief  justice,  the  case  was  reserved  for  further  con- 
sideration. 
Argued  before  COCKBURN,  C.  J.,  and  MANISTY,  J. 

COCKBURN,  C.  J.  This  is  a  case  of  considerable  nicety,  and 
which,  so  far  as  the  precise  facts  are  concerned,  presents  itself  for 
the  first  time.  The  defendant  is  in  the  occupation  of  premises  which 
abut  on  a  private  road  leading  to  certain  other  premises  as  well  as  to 
his ;  it  consists  of  a  carriage-road  and  a  footway.  The  soil  of  both 
is  the  property  of  a  different  owner;  the  defendant  has  no  interest 
in  it  beyond  the  right  of  way  to  and  from  his  premises.  The  de- 
fendant uses  his  premises  as  a  place  where  athletic  sports  are  carried 
on  by  persons  resorting  thereto  for  that  purpose  for  their  own  amuse- 
ment. His  customers,  finding  themselves  annoyed  by  persons  coming 
along  the  road  in  question  in  carts  and  vehicles,  and  stationing  them- 
selves opposite  to  his  grounds  and  overlooking  the  sports,  the  height 
of  the  carts  and  vehicles  enabling  them  to  see  over  the  fence,  the  de- 
fendant erected  a  barrier  across  the  road  for  the  purpose  of  prevent- 
ing vehicles  from  getting  as  far  as  his  grounds.  This  barrier  con- 
sisted of  a  hurdle  set  up  lengthways  next  to  the  footpath;  then  two 
wooden  barriers  armed  with  spikes,  commonly  called  "chevaux-de- 
frise;"  then  there  was  left  an  open  space  through  which  a  vehicle 
could  pass ;  then  came  another  large  hurdle,  set  up  lengthways,  which 
blocked  up  the  rest  of  the  road.  At  ordinary  times,  the  space  between 
the  two  divisions  of  the  barrier  was  left  open  for  vehicles  to  pass 
which  might  be  going  to  any  of  the  other  premises  to  which  the  road 
in  question  led.  But,  at  the  times  when  the  sports  were  going  on,  a 
pole  attached  by  suitable  apparatus  was  carried  across  from  the  one 
part  of  the  barrier  to  the  other,  and  so  the  road  was  effectually  blocked. 
Among  the  houses  and  grounds  to  which  this  private  road  led  was 
that  of  a  Mr.  Bruen.  On  the  evening  on  which  the  accident  which 
gave  rise  to  the  present  action  occurred,  the  plaintiff,  who  occupied 
premises  in  the  immediate  neighborhood,  accompanied  Mr.  Bruen,  by 
the  invitation  of  the  latter,  to  Bruen's  house.  It  was  extremely  dark, 
but,  being  aware  of  the  barrier  and  the  opening  in  it,  they  found  the 
opening,  the  pole  not  being  set  across  it,  and  passed  through  it  in 
safety ;  but  on  his  return,  later  in  the  evening,  the  plaintiff  was  not 
equally  fortunate.  It  appears  that,  in  the  course  of  that  day  or  the 
day  previous,  some  one  had  removed  one  of  the  chevaux-de-frise  hur- 
dles from  the  place  where  it  had  stood,  and  had  placed  it  in  an  up- 
right position  across  the  footpath.  Coming  back  along  the  middle 
of  the  road,  the  plaintiff,  feeling  his  way,  passed  safely  through  the 
opening  in  the  center  of  the  barrier ;  having  done  which,  being  wholly 
unaware,  it  being  much  too  dark  to  see,  that  there  was  any  obstruc- 
tion on  the  footpath,  he  turned  onto  the  latter,  intending  to  walk 
along  it  the  rest  of  the  way.  He  had  advanced  only  two  or  three 
steps,  when  his  eye  came  into  collision  with  one  of  the  spikes,  the 
effect  of  which  was  that  the  eye  was  forced  out  of  its  socket.  It  did 


102  LAW  OF  TORTS. 

not  appear  by  whom  the  chevaux-de-frise  hurdle  had  been  thus  re- 
moved, but  it  was  expressly  found  by  the  jury  that  this  was  not  done 
by  the  defendant  or  by  his  authority.  The  question  is  whether  the 
defendant  can  be  held  liable  for  the  injury  thus  occasioned.  It  is  ad- 
mitted that  what  the  defendant  did  in  erecting-  this  barrier  across  the 
road  was  unauthorized  and  wrongful,  and  it  is  not  disputed  that  the 
plaintiff  was  lawfully  using  the  road.  There  is  no  ground  for  im- 
puting to  him  any  negligence  contributing-  to  the  accident.  The  jury 
have  expressly  found,  in  answer  to  a  question  put  to  them  by  me,  that 
the  use  of  the  chevaux-de-frise  in  the  road  was  dangerous  to  the  safety 
of  persons  using  it.  The  ground  of  defense  in  point  of  law  taken 
at  the  trial  and  on  the  argument  on  the  rule  was  that,  although,  if  the 
injury  had  resulted  from  the  use  of  the  chevaux-de-frise  hurdle,  as 
placed  by  the  defendant  on  the  road,  the  defendant,  on  the  facts  as 
admitted  or  as  found  by  the  jury,  might  have  been  liable,  yet,  as  the 
immediate  cause  of  the  accident  was  not  the  act  of  the  defendant, 
but  that  of  the  person,  whoever  he  may  have  been,  who  removed  the 
spiked  hurdle  from  where  the  defendant  had  fixed  it,  and  placed  it 
across  the  footway,  the  defendant  could  not  be  held  liable  for  an  in- 
jury resulting  from  the  act  of  another.  On  the  part  of  the  plaintiff 
it  was  contended  that,  as  the  act  of  the  defendant  in  placing  a  dan- 
gerous instrument  on  the  road  had  been  the  primary  cause  of  the 
evil,  by  affording  the  occasion  for  its  being  removed  and  placed  on 
the  footpath,  and  so  causing  the  injury  to  the  plaintiff,  he  was  re- 
sponsible in  law  for  the  consequences. 

Numerous  authorities  were  cited  in  support  of  this  position.  The 
first  is  the  case  of  Scott  v.  Shepherd,  3  Wils.  403,  2,  W.  Bl.  892.  In 
that  case  the  defendant  threw  a  lighted  squib  into  a  market-house 
where  several  persons  were  assembled.  It  fell  upon  a  standing,  the 
owner  of  which,  in  self-defense,  took  it  up  and  threw  it  across  the 
market-house.  It  fell  upon  another  standing,  the  owner  of  which,  in 
self-defense,  took  it  up  and  threw  it  to  another  part  of  the  market- 
house,  and  in  its  course  it  struck  the  plaintiff,  and  exploded,  and  put 
out  his  eye.  The  defendant  was  held  liable,  although,  without  the 
intervention  of  a  third  person,  the  squib  would  not  have  injured  the 
plaintiff. 

In  Dixon  v.  Bell,  5  Maule  &  S.  198,  the  defendant,  having  left  a 
loaded  gun  with  another  man,  sent  a  young  girl  to  fetch  it,  with  a 
message  to  the  man  in  whose  custody  it  was  to  remove  the  priming, 
which  the  latter,  as  he  thought,  did,  but,  as  it  turned  out,  did  not  do  ef- 
fectually. The  girl  brought  it  home,  and  thinking  that,  the  priming 
having  been  removed,  the  gun  could  not  go  off,  pointed  it  at  the  plain- 
tiff's son,  a  child,  and  pulled  the  trigger.  The  gun  went  off,  and  in- 
jured the  child.  The  defendant  was  held  liable,  "as  by  this  want  of 
care,"  says  Lord  Ellenborough, — that  is,  by  leaving  the  gun  without 
drawing  the  charge  or  seeing  that  the  priming  had  been  properly  re- 
moved,— "the  instrument  was  left  in  a  state  capable  of  doing  mis- 


GENERAL  PRINCIPLES.  103 

chief,  the  law  will  hold  the  defendant  responsible.  It  is  a  hard  case, 
undoubtedly,  but  I  think  the  action  is  maintainable." 

In  Ilott  v.  Wilkes,  3  Barn.  &  Aid.  304, — the  well-known  case  as  to 
spring-guns, — it  became  necessary  to  determine  how  far  a  person  set- 
ting spring-guns  would  be  liable  to  a  person  injured  by  such  a  gun 
going  off,  even  though  such  person  were  a  trespasser,. inasmuch  as 
the  plaintiff,  having  had  notice  that  spring-guns  were  set  in  a  par- 
ticular wood,  had  voluntarily  exposed  himself  to  the  danger.  But 
both  Mr.  Justice  Bayley  and  Mr.  Justice  Holroyd  appear  to  have 
thought  that  without  such  notice  the  action  would  have  lain,  the  use 
of  such  instruments  being  unreasonably  disproportioned  to  the  end  to 
be  obtained,  and  dangerous  to  the  lives  of  persons*  who  might  be  in- 
nocently trespassing.  Looking  to  their  language,  it  can  scarcely  be 
doubted  that  if,  instead  of  injuring  the  plaintiff,  the  gun  which  he 
caused  to  go  off  had  struck  a  person  passing  lawfully  along  a  path 
leading  through  the  wood,  they  would  have  held  the  defendant  liable. 

In  Jordin  v.  Crump,  8  Mees.  &  W.  782,  the  use  of  dog-spears  was 
held  not  illegal ;  but  there  the  injury  done  to  the  plaintiff's  dog  was 
alone  in  question.  If  the  use  of  such  an  instrument  had  been  pro- 
ductive of  injury  to  a  human  being,  the  result  might  have  been  dif- 
ferent. 

In  Illidge  v.  Goodwin,  5  Car.  &  P.  192,  the  defendant's  cart  and 
horse  were  left  standing  in  the  street  without  any  one  to  attend  to 
them.  A  person  passing  by  whipped  the  horse,  which  caused  it  to 
back  the  cart  against  the  plaintiff's  window.  It  was  urged  that  the 
man  who  whipped  the  horse,  and  not  the  defendant,  was  liable.  It 
was  also  contended  that  the  bad  management  of  the  plaintiff's  shop- 
man had  contributed  to  the  accident.  But  Tindal,  C.  J.,  ruled  that, 
even  if  this  were  believed,  it  would  not  avail  as  a  defense.  "If,"  he 
says,  "a  man  chooses  to  leave  a  cart  standing  on  the  street,  he  must 
take  the  risk  of  any  mischief  that  mav  be  done." 

Lynch  v.  Nurdin,  I  Q.  B.  29,  is  a  still  more  striking  case.  There, 
as  in  the  former  case,  the  defendant's  cart  and  horse  had  been  left 
standing  unattended  in  the  street.  The  plaintiff,  a  child  of  seven 
years  of  age,  playing  in  the  street  with  other  boys,  was  getting  into 
the  cart  when  another  boy  made  the  horse  move  on.  The  plaintiff 
was  thrown  down,  and  the  wheel  of  the  cart  went  over  his  leg  and 
fractured  it.  A  considered  judgment  was  delivered  by  Lord  Denman. 
He  says:  "It  is  urged  that  the  mischief  was  not  produced  by  the 
mere  negligence  of  the  servant  as  asserted  in  the  declaration,  but,  at 
most,  by  that  negligence  in  combination  with  two  other  active  causes, — 
the  advance  of  the  horse  in  consequence  of  his  being  excited  by  the 
other  boy,  and  the  plaintiff's  improper  conduct  in  mounting  the  cart, 
and  committing  a  trespass  on  the  defendant's  chattel.  On  the  former 
of  these  two  causes  no  great  stress  was  laid,  and  I  do  not  apprehend 
that  it  can  be  necessary  to  dwell  on  it  at  any  length.  For  if  I  am 
guilty  of  negligence  in  leaving  anything  dangerous  where  I  know  it 
to  be  extremely  probable  that  some  other  person  will  unjustifiably  set 


104  LAW  OF  TORTS. 

it  in  motion  to  the  injury  of  a  third,  and  if  that  injury  should  be  so 
brought  about,  I  presume  that  the  sufferer  might  have  redress  by 
action  against  both  or  either  of  the  two,  but  unquestionably  against 
the  first."  And  then,  by  way  of  illustration,  the  chief  justice  puts 
the  case  of  a  gamekeeper  leaving  a  loaded  gun  against  the  wall  of  a 
play-ground  where  school-boys  were  at  play,  and  one  of  the  boys  in 
play  letting  it  off  and  wounding  another.  "I  think  it  will  not  be 
doubted,"  says  Lord  Denman,  "that  the  game-keeper  must  answer  in 
damages  to  the  wounded  party."  "This,"  he  adds,  "might  possibly 
be  assumed  as  clear  in  principle,  but  there  is  also  the  authority  of  the 
present  chief  justice  of  the  common  pleas  in  its  support  in  Illidge  v. 
Goodwin,  5  Car.  &  P.  190."  It  is  unnecessary  to  follow  the  judg- 
ment in  the  consideration  of  the  second  part  of  the  case,  namely, 
whether  the  plaintiff,  having  contributed  to  the  accident  by  getting 
into  the  cart,  was  prevented  from  recovering  in  the  action,  as  no  such 
question  arises  here. 

In  Daniels  v.  Potter,  4  Car.  &  P.  262,  the  defendants  had  a  cellar 
opening  to  the  street.  The  flap  of  the  cellar  had  been  set  back  while 
the  defendant's  men  were  lowering  casks  into  it,  as  the  plaintiffs  con- 
tended, without  proper  care  having  been  taken  to  secure  it.  The  flap 
fell,  and  injured  the  plaintiff.  The  defendant  maintained  that  the 
flap  had  been  properly  fastened,  but  also  set  up  as  a  defense  that  its 
fall  had  been  caused  by  some  children  playing  with  it.  But  the  only 
question  left  to  the  jury  by  Tindal,  C.  J.,  was  whether  the  defendant's 
men  had  used  reasonable  care  to  secure  the  flap.  His  direction  im- 
plies that  in  that  case  only  would  the  intervention  of  a  third  party 
causing  the  injury  be  a  defense.  The  cases  of  Hughes  v.  Macfie,  2 
Hurl.  &  C.  744,  33  Law  J.  Exch.  177,  and  Abbott  v.  Macfie,  Id. ;  twc 
actions  arising  out  of  the  same  circumstances,  and  tried  in  the  pas- 
sage court  at  Liverpool,  though  at  variance  with  some  of  the  fore- 
going, so  far  as  relates  to  the  effect  on  the  plaintiff's  right  to  recover 
where  his  own  act  as  a  trespasser  has  contributed  to  the  injury  of 
which  he  complains,  is  in  accordance  with  them  as  respects  the  de- 
fendants' liability  for  his  own  act,  where  that  act  is  the  primary  cause, 
though  the  act  of  another  may  have  led  to  the  immediate  result.  The 
defendants  had  a  cellar  opening  to  the  street.  Their  men  had  taken 
up  the  flap  of  the  cellar  for  the  purpose  of  lowering  casks  into  it,  and 
having  reared  it  against  the  wall  nearly  upright  with  its  lower  face, 
on  which  there  were  cross-bars,  towards  the  street,  had  gone  away. 
The  plaintiff  in  one  of  the  actions,  a  child  five  years  old,  got  upon 
the  cross-bars  of  the  flap,  and  in  jumping  off  them  brought  down  the 
flap  on  himself  and  another  child,  the  plaintiff  in  the  other  action,  and 
both  were  injured.  It  was  held  that,  while  the  plaintiff  whose  act 
had  caused  the  flap  to  fall  could  not  recover,  the  other  plaintiff  who 
had  been  injured  could,  provided  he  had  not  been  playing  with  the 
other  so  as  to  be  a  joint  actor  with  him. 

Bird  v.  Holbrook,  4  Bing.  628,  is  another  striking  case,  as  there 
the  plaintiff  was  undoubtedly  a  trespasser.  The  defendant  being  the 


GENERAL  PRINCIPLES.  105 

owner  of  a  garden,  which  was  at  some  distance  from  his  dwelling- 
house,  and  which  was  subject  to  depredations,  had  set  in  it  without 
notice  a  spring-gun  for  the  protection  of  his  property.  The  plaintiff, 
who  was  not  aware  that  a  spring-gun  was  set  in  the  garden,  in  order 
to  catch  a  peafowl,  the  property  of  a  neighbor,  which  had  escaped 
into  the  garden,  got  over  the  wall,  and  his  foot  coming,  in  his  pursuit 
of  the  bird,  into  contact  with  the  wire  which  communicated  with  the 
gun,  the  latter  went  off  and  injured  him.  It  was  held,  though  his 
own  act  had  been  the  immediate  cause  of  the  gun  going  off,  yet  that 
the  unlawful  act  of  the  defendant  in  setting  it  rendered  the  latter 
liable  for  the  consequences. 

In  the  course  of  the  discussion  the  similar  case  of  Jay  v.  Whitfield, 
at  page  644,  4  Bing.,  (cited  in  3  Barn.  &  Aid.  308,)  was  mentioned, — 
tried  before  Richards,  C.  B., — in  which  a  plaintiff  who  had  trespassed 
upon  premises  in  order  to  cut  a  stick,  and  had  been  similarly  in- 
jured, had  recovered  substantial  damages,  and  no  attempt  had  been 
made  to  disturb  the  verdict. 

In  Hill  v.  New  River  Co.,  9  Best  &  S.  303,  the  defendants  created 
a  nuisance  in  a  public  highway  by  allowing  a  stream  of  water  to  spout 
up  open  and  unfenced  in  the  road.  The  plaintiff's  horses,  passing 
along  the  road  with  his  carriage,  took  fright  at  the  water  thus  spout- 
ing up,  and  swerved  to  the  other  side  of  the  road.  It  so  happened 
that  there  was  in  the  road  an  open  ditch  or  cutting,  which  had  been 
made  by  contractors  who  were  constructing  a  sewer,  and  which  had 
been  left  unfenced  and  unguarded,  which  it  ought  not  to  have  been. 
Into  this  ditch  or  cutting,  owing  to  its  being  unfenced,  the  horses 
fell,  and  injured  themselves  and  the  carriage.  It  was  contended  that 
the  remedy,  if  any,  was  against  the  contractors;  but  it  was  held  that 
the  plaintiff  was  entitled  to  recover  against  the  company. 

In  Burrows  v.  Coke  Co.,  L.  R.  7  Exch.  96,  it  was  held  in  the  ex- 
chequer chamber,  affirming  a  judgment  of  the  court  of  exchequer, 
that  where,  through  a  breach  of  contract  by  the  defendants  in  not 
serving  the  plaintiff  with  a  proper  pipe  to  convey  gas  from  their  main 
into  his  premises,  an  escape  of  gas  had  taken  place,  whereupon,  the 
servant  of  a  gas-fitter  at  work  on  the  premises  having  gone  into  the 
part  of  the  premises  where  the  escape  had  occurred,  with  a  lighted 
candle,  and  examined  the  pipe  with  the  candle  in  his  hand,  an  explo- 
sion took  place,  by  which  the  premises  were  injured,  the  defendants 
were  liable,  though  the  explosion  had  been  immediately  caused  by  the 
imprudence  of  the  gas-fitter's  man  in  examining  the  pipe  with  a  light- 
ed candle  in  his  hand. 

In  Collins  v.  Commissioners,  L.  R.  4  C.  P.  279,  the  defendants  were 
bound,  under  an  act  of  parliament,  to  construct  a  cut  with  proper 
walls,  gates,  and  sluices,  to  keep  out  the  waters  of  a  tidal  river,  and 
also  a  culvert  under  the  cut,  to  carry  off  the  drainage  of  the  lands 
lying  east  of  the  cut,  and  to  keep  the  same  open  at  all  times.  In  con- 
sequence of  the  defective  construction  of  the  gates  and  sluices,  the 
waters  of  the  river  flowed  into  the  cut,  and,  bursting  its  western  bank, 


106  LAW  OF  TORTS. 

flooded  the  adjoining  lands.  The  plaintiff  and  other  proprietors  on 
the  eastern  side  closed  the  culvert,  and  so  protected  their  lands;  but 
the  proprietors  on  the  western  side,  to  lessen  the  evil  to  themselves, 
reopened  the  culvert,  and  so  increased  the  overflow  on  the  plaintiffs' 
land,  and  caused  injury  to  it.  The  defendants  sought  to  ascribe  the 
injury  to  the  act  of  the  western  proprietors  in  removing  the  obstruc- 
tion which  those  on  the  other  side  had. placed  at  the  culvert.  But  it 
was  held  that  the  negligence  of  the  defendants  was  the  substantial 
cause  of  the  mischief.  "The  defendants,"  says  Mr.  Justice  Montague 
Smith,  "cannot  excuse  themselves  from  the  natural  consequences  of 
their  negligence  by  reason  of  the  act,  whether  rightful  or  wrongful, 
of  those  who  removed  the  obstruction  placed  in  the  culvert  under  the 
circumstances  found  in  this  case."  "The  primary  and  substantial  cause 
of  the  injury,"  says  Mr.  Justice  Brett,  "was  the  negligence  of  the 
defendants,  and  it  is  not  competent  to  them  to  say  that  they  are  ab- 
solved from  the  consequences  of  their  wrongful  act  by  what  the  plain- 
tiff or  some  one  else  did."  "I  cannot  see  how  the  defendants  can 
excuse  themselves  by  urging  that  the  plaintiff  was  prevented  by  other 
wrong-doers  from  preventing  a  part  of  the  injury." 

The  case  of  Harrison  v.  Railway  Co.,  3  Hurl.  &  C.  231,  33  Law  J. 
Exch.  266,  belongs  to  the  same  class.  The  defendants  were  bound, 
under  an  Act  of  Parliament,  to  maintain  a  delph  or  drain  with  banks 
for  carrying  off  water  for  the  protection  of  the  adjoining  lands. 
At  the  same  time  certain  commissioners,  appointed  under  an  Act  of 
Parliament,  were  bound  to  maintain  the  navigation  of  the  river  With- 
am,  with  which  the  delph  communicated.  There  having  been  an 
extraordinary  fall  of  rain,  the  water  in  the  delph  rose  nearly  to  the 
height  of  its  banks,  when  one  of  them  gave  way,  and  caused  the  dam- 
age of  which  the  plaintiff  complained.  It  was  found  that  the  bank 
of  the  delph  was  not  in  a  proper  condition;  but  it  was  also  found, 
and  it  was  on  this  that  the  defendants  relied  as  a  defense,  that  the 
breaking  of  the  bank  had  been  caused  by  the  water  in  it  having  been 
penned  back,  owing  to  the  neglect  of  the  commissioners  to  maintain 
in  a  proper  state  Certain  works  which  it  was  their  duty  to  keep  up 
under  their  Act.  Nevertheless  the  defendants  were  held  liable. 

These  authorities  would  appear  to  be  sufficient  to  maintain  the  plain- 
tiff's right  of  action  under  the  circumstances  of  this  case.  It  must, 
however,  be  admitted  that  in  one  or  two  recent  cases  the  courts  have 
shown  a  disposition  to  confine  the  liability  arising  from  unlawful  acts, 
negligence,  or  omissions  of  duty  within  narrower  limits,  by  holding  a 
defendant  liable  for  those  consequences  only  which,  in  the  ordinary 
course  of  things,  were  likely  to  arise,  and  which  might  therefore  rea- 
sonably be  expected  to  arise,  or  which  it  was  contemplated  by  the 
parties  might  arise,  from  such  acts,  negligence,  or  omissions.  In 
Greenland  v.  Chaplin,  5  Exch.  243,  at  page  248,  Pollock,  C.  B.,  says : 
"I  entertain  considerable  doubt  whether  a  person  who  is  guilty  of  neg- 
ligence is  responsible  for  all  the  consequences  which  may  under  any 
circumstances  arise,  and  in  respect  of  mischief  which  could  by  no 


GENERAL  PRINCIPLES.  107 

possibility  have  been  foreseen,  and  which  no  reasonable  person  would 
have  anticipated."  Acting  on  this  principle,  the  court  of  common 
pleas,  in  the  recent  case  of  Sharp  v.  Powell,  L.  R.  7  C.  P.  253,  held 
that  the  action  would  not  lie  where  the  injury,  though  arising  from 
the  unlawful  act  of  the  defendant,  could  not  have  been  reasonably 
expected  to  follow  from  it.  The  defendant  had,  contrary  to  the  pro- 
visions of  the  police  act,  washed  a  van  in  the  street,  and  suffered  the 
water  used  for  the  purpose  to  flow  down  a  gutter  towards'  a  se\ver 
at  some  little  distance.  The  weather  being  frosty,  a  grating,  through 
which  water  flowing  down  the  gutter  passed  into  the  sewer,  had  be- 
come frozen  over,  in  consequence  of  which  the  water  sent  down  by 
the  defendant,  instead  of  passing  into  the  sewer,  spread  over  the  street 
and  became  frozen,  rendering  the  street  slippery.  The  plaintiff's  horse, 
coming  along,  fell  in  consequence,  and  was  injured.  It  was  held 
that,  as  there  was  nothing  to  show  that  the  defendant  was  aware  of 
the  obstruction  of  the  grating,  and  as  the  stoppage  of  the  water  was 
not  the  necessary  or  probable  consequence  of  the  defendant's  act,  he 
was  not  responsible  for  what  had  happened.  Bovill,  C.  J.,  there  says : 
"No  doubt  one  who  commits  a  wrongful  act  is  responsible  for  the 
ordinary  consequences  which  are  likely  to  result  therefrom,  but,  gen- 
erally speaking,  he  is  not  liable  for  damage  which  is  not  the  natural 
or  ordinary  consequence  of  such  act,  unless  it  be  shown  that  he  knows, 
or  has  reasonable  means  of  knowing,  that  consequences  not  usually 
resulting  from  the  act  are,  by  reason  of  some  exisjting  cause,  likely  to 
intervene  so  as  to  occasion  damage  to  a  third  person.  Where  there 
is  no  reason  to  expect  it,  and  no  knowledge  in  the  person  doing  the 
wrongful  act  that  such  a  state  of  things  exists  as  to  render  the  damage 
probable,  if  injury  does  result  to  a  third  person  it  is  generally  con- 
sidered that  the  wrongful  act  is  not  the  proximate  cause  of  the  injury 
so  as  to  render  the  wrong-doer  liable  to  an  action."  And  Grove,  J.. 
said :  "I  am  entirely  of  the  same  opinion.  I  think  the  act  of  the  de- 
fendant was  not  the  ordinary  or  proximate  cause  of  the  damage  to 
the  plaintiff's  horse,  or  within  the  ordinary  consequences  which  the 
defendant  may  be  presumed  to  have  contemplated  or  for  which  he  is 
responsible.  The  expression,  the  'natural'  consequence,  which  has 
been  used  in  so  many  cases,  and  which  I  myself  have,  no  doubt,  often 
used,  by  no  means  conveys  to  the  mind  an  adequate  notion  of  what 
is  meant;  'probable'  would  perhaps  be  a  better  expression.  If,  on 
the  present  occasion,  the  water  had  been  allowed  to  accumulate  round 
the  spot  where  the  washing  of  the  van  took  place,  and  had  there  frozen 
obviously  within  the  sight  of  the  defendant,  and  the  plaintiff's  horse 
had  fallen  there,  I  should  have  been  inclined  to  think  that  the  de- 
fendant would  have  been  responsible  for  the  consequences  which  had 
resulted."  And  Mr.  Justice  Keating  said :  "The  damage  did  not 
immediately  flow  from  the  wrongful  act  of  the  defendant,  nor  was 
such  a  probable  or  likely  result  as  to  make  him  responsible  for  it. 
The  natural  consequence,  if  that  be  a  correct  expression,  of  the  wrong- 
ful act  of  the  defendant,  would  have  been  that  the  water  would,  under 


108  LAW  OF  TORTS. 

ordinary  circumstances,  have  flowed  along  the  gutter  or  channel,  and 
so  down  the  grating  to  the  sewer.  The  stoppage  and  accumulation 
of  the  water  was  caused  by  ice  or  other  obstruction  at  the  drain,  not 
shown  to  have  been  known  to  the  defendant,  and  for  which  he  was 
in  no  degree  responsible.  That  being  so,  it  would  obviously  be  un- 
reasonable to  trace  the  damage  indirectly  back  to  the  defendant." 

We  acquiesce  in  the  doctrine  thus  laid  down  as  applicable  to  the 
circumstances  of  the  particular  case,  but  we  doubt  its  applicability  to 
the  present,  which  appears  to  us  to  come  within  the  principle  of  Scott 
v.  Shepherd,  3  Wils.  403,  2  W.  Bl.  892,  and  Dixon  v.  Bell,  5  Maule 
&  S.  198,  and  the  other  cases  to  which  we  have  referred.  At  the 
same  time,  it  appears  to  us  that  the  case  before  us  will  stand  the  test 
thus  said  to  be  the  true  one.  For  a  man  who  unlawfully  places  an 
obstruction  across  either  a  public  or  a  private  way  may  anticipate  the 
removal  of  the  obstruction,  by  some  one  entitled  to  use  the  way,  as  a 
thing  likely  to  happen;  and,  if  this  should  be  done,  the  probability 
is  that  the  obstruction  so  removed  will,  instead  of  being  carried  away 
altogether,  be  placed  somewhere  near.  Thus,  if  the  obstruction  be 
to  the  carriage-way,  it  will  very  likely  be  placed,  as  was  the  case  here, 
on  the  footpath.  If  the  obstruction  be  a  dangerous  one,  wheresoever 
placed,  it  may,  as  was  the  case  here,  becomes  a  source  of  damage, 
from  which,  should  injury  to  an  innocent  party  occur,  the  original 
author  of  the  mischief  should  be  held  responsible.  Moreover,  we  are 
of  opinion  that,  if  a  person  places  a  dangerous  obstruction  in  a  high- 
way or  in  a  private  road,  over  which  persons  have  a  right  of  way,  he 
is  bound  to  take  all  necessary  precaution  to  protect  persons  exercising 
their  right  of  way,  and  that  if  he  neglects  to  do  so  he  is  liable  for 
the  consequences.  It  is  unnecessary  to  consider  how  the  matter  would 
have  stood  had  the  plaintiff  been  a  trespasser.  The  case  of  Mangan 
v.  Atterton,  4  Hurl.  &  C.  388,  L.  R.  I  Exch.  239,  was  cited  before 
us  as  a  strong  authority  in  favor  of  the  defendant.  The  defendant 
had  there  exposed  in  a  public  market-place  a  machine  for  crushing 
oil-cake  without  it  being  thrown  out  of  gear,  or  the  handle  being 
fastened,  or  any  person  having  the  care  of  it.  The  plaintiff,  a  boy 
of  four  years  of  age,  returning  from  school  with  his  brother,  a  boy 
of  seven,  and  some  other  boys,  stopped  at  the  machine.  One  of  the 
boys  began  to  turn  the  handle.  The  plaintiff,  at  the  suggestion  of 
his  brother,  placed  his  hand  on  the  cogs  of  the  wheels,  and,  the 
machine  being  set  in  motion,  three  of  his  fingers  were  crushed.  It 
was  held  by  the  court  of  exchequer  that  the  defendant  was  not  lia- 
ble— First,  because  there  was  no  negligence  on  the  part  of  the  de- 
fendant, or,  if  there  was  negligence,  it  was  too  remote;  and,  sec- 
ondly, because  the  injury  was  caused  by  the  act  of  the  boy  who 
turned  the  handle,  and  of  the  plaintiff  himself,  who  was  a  trespasser. 
With  the  latter  ground  of  the  decision  we  have  in  the  present  case 
nothing  to  do ;  otherwise  we  should  have  to  consider  whether  it  should 
prevail  against  the  cases  cited,  with  which  it  is  obviously  in  conflict. 
If  the  decision  as  to  negligence  is  in  conflict  with  our  judgment  in 


GENERAL   PRINCIPLES.  109 

this  case,  we  can  only  say  we  do  not  acquiesce  in  it.  It  appears  to  us 
that  a  man  who  leaves  in  a  public  place,  along  which  persons,  and 
among  them  children,  have  to  pass,  a  dangerous  machine,  which  may 
be  fatal  to  any  one  who  touches  it,  without  any  precaution  against 
mischief,  is  not  only  guilty  of  negligence,  but  of  negligence  of  a  very 
reprehensible  character,  and  not  the  less  so  because  the  imprudent  and 
unauthorized  act  of  another  may  be  necessary  to  realize  the  mischief 
to  which  the  unlawful  act  or  negligence  of  the  defendant  has  given 
occasion.  But,  be  this  as  it  may,  that  case  cannot  govern  the  present ; 
for  the  decision  proceeded  expressly  on  the  ground  that  there  had 
been  no  default  in  the  defendant;  here  it  cannot  be  disputed  that  the 
act  of  the  defendant  was  unlawful.  On  the  whole,  we  are  of  opinion, 
both  on  principle  and  authority,  that  the  plaintiff  is  entitled  to  our 
judgment. 

Judgment  for  the  plaintiff. 

(Analogous  cases  of  special  interest  are  Halestrap  v.  Gregory  [1895]  1  Q. 
B.  561 ;  McDowall  v.  Gt.  West.  R.  Co.  [1903]  2  K.  B.  331 ;  Engelhart  v.  Far- 
rant  [1897]  1  Q.  B.  240;  Parker  v.  Cohoes,  10  Hun,  531,  affirmed  74  N.  Y. 
610 ;  McDonald  v.  Snelling,  14  Allen,  290,  92  Am.  Dec.  768 ;  McCauley  v.  Nor- 
cross,  155  Mass.  584,  30  N.  E.  404 ;  Babbitt  v.  Safety  Fund  Nat.  Bk.,  169  Mass. 
361,  47  N.  E.  1018 ;  Henry  v.  Dennis,  93  Ind.  452,  47  Am.  Rep.  378 ;  Binford 
v.  Johnston,  82  Ind.  426,  42  Am.  Rep.  508.  In  this  last  case  a  dealer  sold  to 
two  boys,  aged  ten  and  twelve  years,  cartridges  loaded  with  powder  and  ball, 
for  use  in  a  toy  pistol,  and  instructed  the  boys  in  their  use.  The  boys  after- 
wards left  the  toy  pistol  loaded  with  one  of  the  cartridges  on  the  floor  of  their 
home,  where  a  younger  brother,  aged  six  years,  picked  it  up  and  discharged  it. 
the  ball  wounding  one  of  the  older  brothers  and  causing  his  death.  It  was  held 
that  an  action  would  lie  against  the  dealer.) 


(5  Cow.  351.) 

MOODY  v.  BAKER  (in  part). 
(Supreme  Court  of  New  York.     February  Term,  1826.) 

SLANDER— SPECIAL  DAMAGE— BREAKING  OFF  MARRIAGE  AS  PROXIMATE  RESULT. 
An  action  may  be  maintained  for  words  spoken  of  plaintiff  by  defend- 
ant, charging  her  with  unchaste  conduct,  to  a  man  to  whom  she  was  en- 
gaged to  be  married,  by  reason  of  which  accusation  the  man  broke  the 
engagement,  although  such  words  are  not  in  themselves  actionable,  and 
although  plaintiff  has  a  remedy  against  the  man  engaged  to  her  for 
breach  of  the  contract  to  marry. 

Motions  in  arrest  of  judgment  and  for  a  new  trial. 

Action  for  slander.  The  declaration  alleged  a  contract  of  marriage 
between  plaintiff  and  one  Parkman  Baker ;  that  defendant,  to  pre- 
vent such  intended  marriage,  stated  to  said  Parkman  Baker  that  he 
had  carnal  intercourse  with  plaintiff,  by  reason  whereof  said  Parkman 
Baker  refused  to  marry  plaintiff.  The  jury  found  a  verdict  for  plain- 
tiff. Defendant  moved  in  arrest  of  judgment,  on  the  ground  that 
the  declaration  was  insufficient. 


HO  LAW  OF  TORTS. 

BY  THE  COURT,  per  WOODWORTH,  J.  The  words  spoken 
are  not  in  themselves  actionable.  If  the  action  is  sustainable,  it  must 
be  on  the  ground  of  special  damage.  It  is  contended  on  the  part  of 
the  defendant  that  no  action  can  be  maintained  on  the  facts  alleged 
in  the  declaration.  The  case  of  Vicars  v.  Wilcocks,  8  East,  i,  is  re- 
lied on  as  an  authority  in  point.  In  that  case  it  was  held  that,  when 
special  damage  is  necessary  to  sustain  an  action  for  slander,  it  is 
not  sufficient  to  prove  a  mere  wrongful  act  of  a  third  person,  induced 
by  the  slander,  but  the  special  damage  must  be  a  legal  and  natural 
consequence  of  the  words  spoken.  It  appeared  that  in  consequence 
of  speaking  the  words  the  plaintiff  had  been  dismissed  from  his  em- 
ployment before  the  end  of  the  term  for  which  he  had  contracted. 
Lord  Ellenborough  proceeded  on  the  ground  that  this  was  an  illegal 
consequence, — a  mere  wrongful  act  of  the  master,  for  which  the  de- 
fendant was  not  answerable, — and  inquired  whether  any  case  could 
be  mentioned  of  an  action  of  this  sort  sustained  by  proof  only  of  an 
injury  by  the  tortious  act  of  a  third  person.  If  the  doctrine  here 
advanced  is  well  founded,  it  disposes  of  the  case  before  us.  The 
learned  judge  does  not  refer  to  any  authority  in  support  of  the  de- 
cision. In  my  view,  it  seems  to  be  a  departure  from  well-established 
principles,  applicable  to  this  species  of  action.  Morris  v.  Langdale, 
2  Bos.  &  P.  284,  was  cited  on  the  argument  as  supporting  the  doc- 
trine laid  down  by  Lord  Ellenborough.  The  plaintiff  in  that  case 
stated  that  he  was  a  dealer  in  the  funds,  and  as  such  had  been  ac- 
customed to  contract ;  that  the  defendant  said  of  him,  as  such  dealer, 
"He  is  a  lame  duck,"  in  consequence  of  which  divers  persons  refused 
to  fulfill  their  contracts  with  him,  and  he  was  prevented  from  fulfill- 
ing his  contracts  with  other  persons.  It  was  held  that  it  did  not 
sufficiently  appear  either  that  the  words  were  spoken  of  lawful  con- 
tracts, or  that  the  plaintiff  was  a  lawful  dealer  in  the  funds,  and 
that  the  declaration  was  therefore  bad.  Part  of  the  gravamen  was 
that  divers  persons  refused  to  fulfill  their  contracts.  If  the  test  is 
that  the  special  damage  must  be  the  legal  and  natural  consequence  of 
the  words  spoken,  and  that  the  plaintiff  is  not  entitled  to  recover  be- 
cause he  had  a  right  of  action  on  his  contract,  it  is  surprising  that 
this  ground  had  not  been  taken  by  the  counsel  who  argued.  But  it 
is  not  even  suggested.  The  opinion  of  the  court  also  seems  to  be 
placed  on  other  grounds.  It  is  true,  Lord  Eldon  observed  that  a, 
doubt  had  arisen  in  the  mind  of  the  court  whether  the  special  damage 
had  been  so  laid  as  to  support  the  action,  and  that,  if  the  plaintiff 
had  sustained  any  damage  in  consequence  of  the  refusal  of  any  per- 
sons to  perform  their  lawful  contracts  with  him,  it  is  damage  which 
may  be  compensated  in  actions  brought  by  the  plaintiff  against  those 
persons.  These  remarks  were  not  necessary  to  the  decision  of  the 
cause.  Admitting  them,  however,  to  be  correct,  the  case  was  not 
like  the  present.  If  persons  had  refused  to  fulfill  their  contracts 
with  the  plaintiff,  he  was  entitled  to  recover  damages.  The  court 


GENERAL  PRINCIPLES.  Ill 

probably  considered  it  substantially  a  contract  for  the  payment  of 
money,  in  which  case  the  refusal  to  pay  by  the  debtor  in  consequence 
of  the  speaking  of  slanderous  words  would  not  be  a  ground  of  special 
damage.  Most,  if  not  all,  the  cases  for  loss  of  marriage,  to  be  met 
with  in  the  books,  allege  a  communication  or  treaty  of  marriage  only, 
and  that  the  marriage  was  lost  by  reason  of  speaking  the  words. 
Davis  v.  Gardiner,  4  Coke,  17;  Southold  v.  Daunston,  Cro.  Car.  269; 
Brian  v.  Cockman,  Id.  322 ;  Holwood  v.  Hopkins,  Cro.  Eliz.  787. 

By  a  communication  or  treaty  of  marriage  must,  I  think,  be  under- 
stood, that  the  parties  had  contracted  to  marry  each  other.  If  this 
had  not  taken  place,  how  can  it  be  said,  correctly,  that  a  marriage  was 
lost?  In  this  case  a  valid  contract  of  marriage  is  set  out  in  the  dec- 
laration. That  the  action  can  be  maintained  will  not  be  questioned, 
if  it  be  shown  that  the  law  has  given  this  remedy  in  cases  analogous 
and  similar  in  principle.  It  is  a  general  rule  that,  where  a  man  has 
a  temporal  loss  or  damage  by  the  wrong  of  another,  he  may  have 
an  action  on  the  case,  to  be  repaired  in  damages.  I  Com.  Dig.  tit. 
"Action  on  the  Case,"  A,  p.  178.  If  a  party  has  several  remedies  for 
the  same  thing,  he  has  an  election  to  pursue  either.  Co.  Litt.  145,  a. 
But,  after  having  recovered  satisfaction  for  the  injury  from  one 
person,  he  cannot  afterwards  proceed  against  any  other  person  for 
a  further  satisfaction.  Bird  v.  Randall,  3  Burrows,  1345.  The 
case  of  Bird  v.  Randall  was  twice  argued,  and  decided  after  great 
consideration.  The  principles  recognized  and  acted  upon  by  the 
court,  if  sound,  are,  in  my  mind,  decisive  of  the  present  question. 
It  appeared  that  one  Burford,  by  articles  of  agreement,  covenanted 
to  serve  the  plaintiff  for  five  years  as  a  journeyman,  and  bound 
himself  in  the  penalty  of  £100.  After  continuing  a  part  of  the 
time,  the  defendant  procured  and  enticed  him  to  depart,  which  he 
accordingly  did.  The  plaintiff  sued  Burford  for  the  penalty,  and  re- 
covered judgment  against  him,  but  the  money  was  not  actually  paid 
until  after  the  commencement  of  the  action  against  the  defendant. 
The  question  was  whether  it  was  maintainable.  It  is  remarkable  that 
the  point  whether  the  action  could  be  sustained  (inasmuch  as  the 
plaintiff  had  a  remedy  on  the  contract)  was  not  even  hinted  at  by 
the  court  or  counsel.  It  is  manifest  that  no  such  notion  of  the  law 
was  then  entertained ;  for  Lord  Mansfield,  who  delivered  the  opinion 
of  the  court,  observed  that  the  case  turned  upon  two  points :  (i) 
Whether  the  plaintiff  could  maintain  the  action  if  the  £100  recovered 
against  the  servant  had  been  actually  received  before  the  commence- 
ment of  the  action ;  and,  (2)  if  it  could  not,  whether  the  receipt  of  the 
money  subsequently  would  vary  the  case.  I  cannot  well  conceive 
of  a  more  perfect  recognition  that  the  fact  of  an  existing  remedy  on 
the  contract  formed  no  objection.  All  the  reasoning  of  his  lordship 
goes  clearly  to  prove  this.  The  ground  upon  which  he  places  the 
decision  is  that  satisfaction  had  already  been  received,  which  implies 
that,  if  it  had  not,  there  was  no  obstacle  in  the  way.  This  case  is  very 


1  12  LAW  OF  TORTS. 

analogous  to  the  one  before  us.  In  each  there  was  a  contract  between 
the  plaintiff  and  another  person,  and  in  each  the  attempt  was  to  re 
cover  damages  by  proof  of  an  injury  sustained  by  the  tortious  act  of 
a  third  person.  If,  then,  the  principle  recognized  in  Bird  v.  Randall 
would  authorize  a  recovery,  when  there  was  a  contract  of  service, 
upon  which  damages  might  be  recovered,  I  think  it  will  apply  with 
greater  force  when  there  has  been  a  contract  of  marriage,  and  per- 
formance of  it  refused  in  consequence  of  the  slander  of  the  defendant. 
A  contract  of  marriage  looks  principally  to  a  specific  execution.  It. 
is  of  a  very  different  nature  and  character  from  the  preventing  of  the 
fulfillment  of  a  contract  to  pay  a  sum  of  money.  In  the  latter  case, 
the  non-fulfillment  of  the  contract  by  means  of  a  third  person  would 
have  no  effect  on  the  ability  of  the  contracting  party ;  whereas,  in  a 
case  of  the  specific  execution  of  a  contract  to  marry,  its  value  does 
not  depend  on  the  ability  of  a  person  to  pay  damages.  It  is,  indeed, 
a  temporal  loss,  but  of  a  character  not  capable  of  being  wholly  re- 
paired by  the  payment  of  money, — the  only  substitute  the  law  has 
devised.  But  there  are  other  cases  which  rest  on  the  same  principle. 
If  one  slanders  my  title,  whereby  I  am  wrongfully  disturbed  in  my 
possession,  though  I  have  a  remedy  against  the  disturber,  yet  I  may 
have  an  action  against  him  that  caused  the  disturbance,  i  Bac.  Abr. 
tit.  "Action  on  the  Case,"  p.  98 ;  Newman  v.  Zachary,  Aleyn,  3.  This 
is  equally  against  the  doctrine  of  Lord  Ellenborough,  for  here  dam- 
ages are  given  which  were  caused  by  the  tortious  act  of  a  third  per- 
son. Again,  in  the  action  for  enticing  away  another's  servant,  the 
servant  is  always  liable,  and  yet  the  law  is  well  settled  that  the  se- 
ducer is  also  liable.  Regina  v.  Callingwood,  2,  Ld.  Raym.  1116;  Hart 
v.  Aldridge,  Cowp.  54 ;  Reeve,  Dom.  Rel.  376 ;  4  Bac.  Abr.  593.  The 
doctrine  contended  for  strikes  at  the  root  of  society,  and,  in  my 
view,  overturns  some  of  the  well-settled  and  revered  principles  of  the 
common  law.  I  cannot,  therefore,  doubt  that  the  declaration  con- 
tains a  good  cause  of  action,  and  that  the  motion  in  arrest  of  judg- 
ment should  be  denied. 
Motion  denied. 

(See  Knight  v.  Gibbs,  1  Ad.  &  El.  43;  Moore  v.  Stevenson,  27  Conn.  14; 
Paull  v.  Halferty,  63  Pa.  46,  50,  3  Am.  Rep.  518;  Lvmiley  v.  Gye,  2  E.  &  B. 
216 ;  Walker  v.  Cronin,  107  Mass.,  at  page  567.) 


GENERAL  PRINCIPLES.  113 

(6  Q.  B.  Div.  333.) 

BOWEN  v.  HALL  et  al.  (In  part). 

(Court  of  Appeal.     February  5,  1881.) 

INDUCING  BREACH  OF  CONTRACT — PROXIMATE  CONSEQUENCES. 

A  person  who  maliciously  induces  another  to  break  a  contract  made 
by  the  latter  with  an  employer  for  the  employees  exclusive  personal  serv- 
ices, where  such  breach  would  naturally  cause,  and  does  in  fact  cause,  in- 
jury to  the  employer,  is  liable  to  the  employer  therefor,  even  though  the 
relation  between  the  employer  and  employed  may  not  be,  strictly  and  for 
all  purposes,  that  of  master  and  servant.  The  injury  in  such  case  is,  in 
law  as  well  as  in  fact,  a  natural  and  probable  consequence  of  the  wrongful 
act  Decision  of  the  majority  of  the  judges  in  Lumley  v.  Gye,  2  El.  & 
Bl.  216,  approved. 

Appeals  from  Queen's  Bench  Division, 

Action  by  Edward  Bowen  as  against  defendants  Hall  and  Fletcher, 
for  wrongfully  enticing  away  and  keeping  the  other  defendant,  Pear- 
son, from  the  plaintiff's  employment,  and  for  wrongfully  receiving 
and  harboring  him  after  notice  of  his  being  the  servant  of  plaintiff; 
and,  as  against  defendant  Pearson,  for  unlawfully,  and  against  the 
will  of  plaintiff,  departing  from  the  service  of  plaintiff.  It  appeared 
that  plaintiff  carried  on  the  business  of  a  brick-maker,  and  that  in 
June,  1877,  defendant  Pearson  entered  into  a  written  contract  with 
plaintiff,  whereby  defendant  agreed,  for  the  consideration  of  certain 
prices  named,  "to  find  all  labor  for  the  whole  manufacture,  in  a 
workmanlike  manner,  of  best  quality  white-glazed  bricks  and  baths, 
(with  exception  of  hooping  the  baths  and  preparing  the  clay  mass), 
in  such  quantities  as  you  require  and  when  you  require,"  and  deliver 
anywhere  they  might  be  required  on  plaintiff's  premises;  and  also 
agreed  not  to  engage  himself  "to  any  one  else  for  a  term  of  five 
years ;"  and  plaintiff  agreed  to  the  foregoing  conditions,  and  to  sup- 
ply clay  for  the  manufacture  of  said  goods,  and  also  to  find  all  ma- 
terials (with  the  exception  of  body  and  glaze,  which  defendant  Pear- 
son agreed  to  find)  and  tools,  "and  not  engage  any  one  else  for  the 
same  work  for  a  ferm  of  five  years."  Plaintiff  alleged  that  the  manu- 
facture of  white-glazed  bricks  and  baths  according  to  said  samples 
was  a  secret  known  to  defendant  Pearson  and  only  a  few  others,  and 
that  defendant  Hall,  who  was  a  manufacturer  of  white-glazed  bricks 
and  baths  in  the  neighborhood  of  plaintiff,  did  not  know  of  the  method 
of  manufacture  which  Pearson  used,  and  that  therefore  the  bricks  and 
baths  he  manufactured  were  inferior  to  those  manufactured  by  Pear- 
son on  account  of  plaintiff.  The  complaint  of  plaintiff,  for  which  this 
action  was  brought,  was  that  in  May,  1878,  defendants  Hall  and 
Fletcher  (the  latter  being  Hall's  manager)  wrongfully  induced  Pear- 
son, contrary  to  his  said  agreement  with  plaintiff,  to  depart  from 
CHASE  (2o  ED.) — 8 


114  LAW  OF  TORTS. 

the  exclusive  service  of  plaintiff,  and  to  manufacture  on  account  oi 
the  defendant  Hall  glazed  bricks  and  baths  such  as  he  had  contracted 
to  manufacture  for  plaintiff.  Plaintiff  claimed  damages,  not  against 
all  the  defendants,  but  against  only  the  two  defendants,  Hall  and 
Fletcher.  He  also  claimed  an  injunction  to  restrain  these  defendants 
from  employing  defendant  Pearson  to  do  work  for  them  at  brick 
making  or  glazing,  and  he  claimed  an  injunction  to  restrain  defend- 
ant Pearson  from  engaging  himself  to  defendants  Hall  and  Fletcher 
until  the  expiration  of  his  said  contract  of  service  with  plaintiff.  An 
interim  injunction  in  the  terms  claimed  was  granted  by  Field,  J.,  as 
against  all  the  defendants.  The  action  was  tried  before  Manisty,  J., 
who  held  that  there  was  no  evidence  to  enable  plaintiff  to  maintain 
his  action  against  defendants  Hall  and  Fletcher,  and  he  therefore 
directed  a  verdict  to  be  entered  for  those  defendants;  and,  as  re- 
garded defendant  Pearson,  the  learned  judge  was  of  opinion  that,  as 
that  defendant  had  not  acted  or  threatened  to  act  contrary  to  the 
interim  injunction,  there  was  nothing  to  justify  making  such  injunc- 
tion perpetual.  Plaintiff  afterwards  applied  for  and  obtained  a  rule 
nisi  against  all  the  defendants  for  a  new  trial.  The  queen's  bench 
division  made  such  rule  absolute  as  against  defendants  Hall  and 
Fletcher,  but  it  discharged  the  rule  as  to  defendant  Pearson.  De- 
fendants Hall  and  Fletcher  appealed  to  the  court  of  appeal  against 
the  order  for  a  new  trial,  and  there  was  a  cross-appeal  by  plaintiff 
against  the  order  discharging  the  rule  as  to  defendant  Pearson. 

Argued  before  Lord  SELBORNE,  L.  C,  Lord  COLERIDGE, 
C.  J.,  and  BRETT,  L.  J. 

BRETT,  L.  J.  The  lord  chancellor  agrees  with  me  in  the  judg- 
ment I  am  about  to  read,  and  it  is  to  be  taken,  therefore,  as  the  judg- 
ment of  the  lord  chancellor  as  well  as  of  myself. 

In  this  case,  we  were  of  opinion  at  the  hearing  that  the  contract 
was  one  for  personal  service,  though  not  one  which  established  strict- 
ly, for  all  purposes,  the  relation  of  master  and  servant  between  the 
plaintiff  and  Pearson.  We  were  of  opinion  that  there  was  evidence  to 
justify  a  finding  that  Pearson  had  been  induced  by  the  defendants 
to  break  his  contract  of  service ;  that  he  had  broken  it,  and  had  there- 
by, in  fact,  caused  some  injury  to  the  plaintiff.  We  were  of  opinion 
that  the  act  of  the  defendants  was  done  with  knowledge  of  the  con- 
tract between  the  plaintiff  and  Pearson ;  was  done  in  order  to  obtain 
an  advantage  for  one  of  the  defendants  at  the  expense  of  the  plaintiff ; 
was  done  from  a  wrong  motive,  and  would  therefore  justify  a  finding 
that  it  was  done  in  that  sense  maliciously.  There  remained,  never- 
theless, the  question  whether  there  was  any  evidence  to  be  left  to 
the  jury  against  the  defendants  Hall  and  Fletcher,  it  being  objected 
that  Pearson  was  not  a  servant  of  the  plaintiff.  The  case  was  ac- 
curately within  the  authority  of  the  case  of  Lumley  v.  Gye,  2  El-  & 


GENERAL  PRINCIPLES.  115 

Bl.  216,  22  Law  J.  Q.  B.  463.1  If  that  case  was  rightly  decided,  the 
objection  in  this  case  failed.  The  only  question,  then,  which  we  took 
time  to  consider,  was  whether  the  decision  of  the  majority  of  the 
judges  in  that  case  should  be  supported  in  a  court  of  error.  The 
decision  of  the  majority  will  be  seen,  on  a  careful  consideration  of 
their  judgments,  to  have  been  founded  upon  two  chains  of  reason- 
ing. First,  that  wherever  a  man  does  an  act  which  in  law  and  in  fact 
is  a  wrongful  act,  and  such  an  act  as  may,  as  a  natural  and  probable 
consequence  of  it,  produce  injury  to  another,  and  which  in  the  par- 
ticular case  does  produce  such  an  injury,  an  action  on  the  case  will 
lie.  This  is  the  proposition  to  be  deduced  from  the  case  of  Ashby  v. 
White,  I  Smith  Lead.  Cas.  (8th  Ed.)  264.  If  these  conditions  are 
satisfied,  the  action  does  not  the  less  lie  because  the  natural  and 
probable  consequence  of  the  act  complained  of  is  an  act  done  by  a 
third  person;  or  because  such  act  so  done  by  the  third  person  is  a 
breach  of  duty  or  contract  by  him,  or  an  act  illegal  on  his  part,  or 
an  act  otherwise  imposing  an  actionable  liability (on  him.  It  has  been 
said  that  the  law  implies  that  the  act  of  the  third  party,  being  one 
which  he  has  free  will  and  power  to  do  or  not  to  do,  is  his  own  will- 
ful act,  and  therefore  is  not  the  natural  or  probable  result  of  the 
defendant's  act.  In  many  cases  that  may  be  so,  but,  if  the  law  is  so 
to  imply  in  every  case,  it  will  be  an  implication  contrary  to  manifest 
truth  and  fact.  It  has  been  said  that  if  the  act  of  the  third  person 
is  a  breach  of  duty  or  contract  by  him,  or  is  an  act  which  it  is  illegal 
for  him  to  do,  the  law  will  not  recognize  that  it  is  a  natural  or  prob- 
able consequence  of  the  defendant's  act.  Again,  if  that  were  so  held 
in  all  cases,  the  law  would  in  some  refuse  to  recognize  what  is 
manifestly  true  in  fact.  The  act  complained  of  in  such  a  case  as 
Lumley  v.  Gye,  and  which  is  complained  of  in  the  present  case, 
is  a  persuasion  by  the  defendant  of  a  third  person  to  break  a  con- 
tract existing  between  such  third  person  and  the  plaintiff.  It  can- 
not be  maintained  that  it  is  not  a  natural  and  probable  consequence 
of  that  act  of  persuasion  that  the  third  person  will  break  his  con- 
tract. It  is  not  only  the  natural  and  probable  consequence,  but, 
by  the  terms  of  the  proposition  which  involves  the  success  of  the 
persuasion,  it  is  the  actual  consequence.  Unless  there  be  some  tech- 
nical doctrine  to  oblige  one  to  say  so,  it  seems  impossible  to  say 
correctly,  in  point  of, fact,  that  the  breach  of  contract  is  too  remote 
a  consequence  of  the  act  of  the  defendants.  The  injury  is  in  such 
a  case,  in  law  as  well  as  in  fact,  a  natural  and  probable  conse- 
quence of  the  cause,  because  it  is  in  fact  the  consequence  of  the  cause, 
and  there  is  no  technical  rule  against  the  truth  being  recognized.  It 
follows  that  in  Lumley  v.  Gye,  and  in  the  present  case,  all  the  con- 

iln  this  case  the  plaintiff,  a  theatrical  manager,  had  engaged  Miss  Wagner 
as  a  singer  for  a  certain  time,  and  defendant  maliciously  induced  her  to  break 
her  contract  and  refuse  to  sing.  The  defendant  was  held  liable. 


LAW  OF  TORTS. 

ditions  necessary  to  maintain  an  action  on  the  case  are  fulfilled. 
We  are  therefore  of  opinion  that  the  judgment  of  the  queen's  bench 
division  was  correct,  and  that  the  principal  appeal  must  be  dismissed. 

SELBORNE,  L.  C.,  added  the  judgment  of  the  court  that  the 
cross-appeal  of  plaintiff  against  the  order  discharging  as  to  the  de- 
fendant Pearson  the  rule  for  a  new  trial  should  be  allowed,  and  that 
there  should  be  a  new  trial  as  to  all  the  defendants. 

COLERIDGE,  C.  J.,  dissented,  holding  that  Lumley  v.  Gye,  2 
El.  &  Bl.  216,  Law  J.  22  Q.  B.  463,  should  be  overruled,  and  that  the 
action  against  the  defendants  Hall  and  Fletcher  was  not  maintainable ; 
but  as  to  defendant  Pearson  agreeing  with  the  rest  of  the  court. 

Appeal  of  defendants  Hall  and  Fletcher  dismissed;  cross-appeal 
of  plaintiff  as  to  defendant  Pearson  allowed. 

(Some  dicta  in  this  decision  have  been  omitted,  because  their  soundness  has 
been  denied  in  later  English  cases.  Allen  v.  Flood  [1898]  A.  C.,  at  pages  107, 
119,  120,  127,  153,  179;  Quinn  v.  Leathern  [1901]  A.  C.,  at  page  509.  But  the 
decision  itself,  upon  the  question  that  was  at  issue,  as  well  as  the  decision 
in  Lumley  v.  Gye,  2  E.  &  B.  216,  which  it  followed,  has  been  upheld.  Allen 
v.  Flood  [1898]  A.  C..  at  pages  106,  107,  121,  126,  171 ;  Quinn  v.  Leathern  [1901] 
A.  C.,  at  pages  510,  535 ;  Read  v.  Friendly  Society  of  Stonemasons,  etc.,  [1902] 
2  K.  B.,  at  page  738.  There  has,  however,  been  considerable  discussion  in 
these  recent  English  cases  as  to  whether  "malice"  is  an  essential  element  of 
the  cause  of  action,  and  in  fact  as  to  what  "malice"  means  in  this  connection. 
See  Allen  v.  Flood,  passim ;  Quinn  v.  Leathern,  at  page  510 ;  Read  v.  Friend- 
ly Society,  at  page  739.  The  present  statements  of  English  law  on  this  gen- 
eral subject  are  as  follows :  "A  violation  of  legal  right  committed  knowingly 
Is  a  cause  of  action,  and  it  is  a  violation  of  legal  right  to  interfere  with  con- 
tractual relations  recognized  by  law,  if  there  be  no  sufficient  justification 
for  the  interference."  Quinn  v.  Leathern,  at  page  510;  Glamorgan  Coal  Co. 
v.  So.  Wales  Miners'  Federation  [1903]  2  K.  B.  545,  573,  576.  "The  intentional 
procurement  of  a  violation  of  individual  rights,  contractual  or  other,  assum- 
ing always  that  there  is  no  just  cause  for  it,"  gives  a  right  of  action.  Mogul 
Steamship  Co.  v.  McGregor,  23  Q.  B.  D.  at  p.  614.  Hence  actions  have  been 
sustained  in  the  following  cases :  Where  a  society  of  workmen  gave  notice 
to  the  employers  of  A  as  an  apprentice  that,  if  the  engagement  of  A  were 
continued,  they  would  call  out  the  workmen  who  were  working  for  said  em- 
ployers, and  who  were  all  members  of  the  society ;  the  employers  for  this  rea- 
son discharged  A,  and  he  sued  the  society  [Read  v.  Friendly  Society,  etc. 
(1902)  2  K.  B.  732] ;  where  persons  induced  the  customers  of  a  man  to  break 
their  contracts  with  him,  and  not  to  deal  with  him,  and  thereby  caused  him 
damage.  Quinn  v.  Leathern,  supra;  S.  P.  Glamorgan  Coal  Co.  v.  So.  Wales 
Miners'  Federation,  supra.  What  will  constitute  "sufficient  justification" 
for  procuring  a  breach  of  contract  cannot,  it  is  said,  be  generally  defined, 
but  must  depend  on  the  facts  of  each  case  [Id.]. 

In  this  country  the  great  weight  of  authority  supports  Lumley  v.  Gye  and 
Bowen  v.  Hall,  ante  113.  Thus,  the  United  States  Supreme  Court  holds  that 
"if  one  maliciously  interferes  in  a  contract  between  two  parties,  and  induces 
one  of  them  to  break  that  contract  to  the  injury  of  the  other,  the  party  injured 
can  maintain  an  action  against  the  wrongdoer."  Angle  v.  Chicago,  etc.,  R. 
Co.,  151  U.  S.  1,  14  Sup.  Ct.  240,  38  L.  Ed.  55.  To  the  same  effect  are  Moran 


GENERAL   PRINCIPLES.  117 

y.  Dunphy,  177  Mass.  485,  59  N.  E.  125,  52  L.  R.  A.  115,  83  Am.  St.  Rep.  289; 
Jones  v.  Stanly,  76  N.  C.  355;  Bixby  v.  Dunlap,  50  N.  H.  456,  22  Am.  Rep. 
475;  Perkins  v.  Pendleton,  90  Me.  166,  38  Atl.  96,  60  Am.  St.  Rep.  252;  Lucke 
v.  Clothing  Cutters',  etc.,  77  Md.  396,  26  Atl.  505,  19  L.  R.  A.  408,  39  Am.  St 
Rep.  421:  Cliipley  v.  Atkinson,  23  Fla.  218,  1  South.  934,  11  Am.  St.  Rep. 
867 ;  Raymond  v.  Yarrington,  96  Tex.  443,  73  S.  W.  800,  62  L.  R.  A.  962 ;  Ray- 
croft  v.  Tayntor,  68  Vt.  219,  223,  35  Atl.  53,  33  L.  R.  A.  225,  54  Am.  St.  Rep. 
882;  Morgan  v.  Andrews,  107  Mich.  33,  64  N..  W.  869;  Frank  v.  Herold,  63 
N.  J.  Eq.  443,  52  Atl.  152 ;  Barr  v.  Essex  Trades  Council,  53  N.  J.  Eq.  101,  117r 
30  Atl.  881.  "Malice''  has  been  said  to  exist  when  defendant's  acts  were  done 
"without  right  or  justifiable  cause"  on  his  part,  "with  the  unlawful  purpose 
to  cause  damage  or  loss"  to  the  plaintiff.  Walker  v.  Cronin,  107  Mass.,  at  page 
5G2.  Wrongful  interference  of  any  kind,  even  if  not  malicious,  has  also  been 
said  to  be  sufficient  to  afford  a  cause  of  action.  Lucke  v.  Clothing  Cutters', 
etc.,  77  Md.,  at  page  405,  26  Atl.  507,  19  L.  R.  A.  408,  39  Am.  St.  Rep.  421. 
"We  see  no  sound  distinction  between  persuading  by  malevolent  advice  or 
accomplishing  the  same  result  by  falsehood  or  putting  in  fear."  Moran  v. 
Dunphy.  177  Mass.  485,  59  N.  E.  125,  52  L.  R.  A.  115,  83  Am.  St.  Rep.  289; 
but  see  Perkins  v.  Pendleton,  90  Me.  166,  38  Atl.  96,  60  Am.  St.  Rep.  252 ;  cf. 
Frank  v.  Herold,  63  N-  J-  Eq.  443,  52  Atl.  152. 

In  some  states  it  is  held  that  the  action  lies,  even  though  the  contract  would 
not  have  been  enforceable  against  the  party  who  was  induced  to  break  it 
[Perkins  v.  Pendleton,  90  Me.  166,  38  Atl.  96,  60  Am.  St.  Rep.  252,  citing  the 
cases] ;  as,  e.  g.,  where  a  servant  whose  discharge  was  wrongfully  induced  by 
defendant  was  only  hired  at  will.  Id. ;  Noice  v.  Brown,  39  N.  J.  Law,  569 ;  Moran 
v.  Dunphy,  177  Mass.,  at  page  487,  59  N.  E.  125,  52  L.  R.  A.  115,  83  Am.  St.  Rep. 
289.  Again,  in  some  jurisdictions  it  is  actionable,  not  only  to  wrongfully  induce 
the  breaking  of  an  actual  contract  with  A,  but  to  wrongfully  deter  others  from 
entering  into  contracts  or  business  dealings  with  A.  Rice  v.  Albee,  164  Mass. 
88,  41  N.  E.  122 ;  May  v.  Wood,  172  Mass.  11,  14,  51  N.  E.  191 ;  Temperton  v. 
Russell  [1893]  1  Q.  B.  715 ;  Quinn  v.  Leathern  [1901]  A.  C.  495 ;  contra,  Gueth- 
ler  v.  Altman,  26  Ind.  App.  587,  60  N.  E.  355,  84  Am.  St.  Rep.  313. 

Some  decisions  in  this  country  do  not  agree  with  the  above  authorities.  They 
concede  that  an  action  lies  [a]  for  enticing  a  servant  away  from  his  master ; 
[b]  for  procuring,  by  fraud,  threats,  or  violence,  the  breach  of  a  contract  by 
a  party  thereto,  to  the  damage  of  the  other  party ;  but  they  decline  to  go  far- 
ther. Thus  no  action  was  held  to  lie,  where  a  theatrical  manager  maliciously 
induced  an  actress  to  break  her  engagement  at  another  theater  and  to  perform 
at  his  own  [Boulier  v.  Macauley,  91  Ky.  135,  15  S.  W.  GO,  11  L.  R.  A.  550,  34  Am. 
St.  Rep.  171] ;  or  where  a  person  maliciously  induced  a  vendor  of  goods  to 
sell  and  deliver  them  to  him,  and  thus  violate  his  contract  with  the  original 
purchaser  [Chambers  v.  Baldwin,  91  Ky.  121,  15  S.  W.  57,  11  L.  R.  A.  545,  34 
Am.  St.  Rep.  1<>5] ;  or  where  a  person  maliciously  induced  an  innkeeper  to 
break  his  contract  with  a  lodger  and  his  family  [Boyson  v.  Thorn,'  98  Cal. 
u78,  33  Pac.  492,  21  L.  R.  A.  233;  Glencoe  Gravel  Co.  v.  Hudson  Bros.  Co., 
138  Mo.  439.  40  S.  W.  93,  36  L.  R.  A.  804,  60  Am.  St.  Rep.  560 ;  cf.  Kline  v. 
Eubanks,  109  La.  241,  33  South.  211]. 

In  some  states  there  are  statutes  making  it  a  criminal  offense  to  entice  away 
or  knowingly  employ  laborers  or  tenants  of  another.  Streater  v.  State,  137 
Ala.  93,  34  South.  395 ;  Caldwell  v.  O'Neal,  117  Ga.  775,  45  S.  E.  41.) 


118  LAW  OF  TORTS. 


Torts,   as  distinguished  from    crimes,  do  not,  in  general, 
involve  a  "wrongful  intent. 

(T.  Raym.  467.) 

BESSET  v.  OLL1OT  et  al.  (in  part). 
(Court  of  King's  Bench,     Trinity  Term,   1682.) 

TRESPASS— INTENT. 

An  action  may  be  maintained  for  a  trespass  although  there  was  no 
wrongful  intent  on  the  part  of  defendant,  the  ground  of  recovery  being 
compensation  for  the  loss  or  damage  suffered. 

Error  to  Common  Pleas. 

Action  by  Bessey  against  Olliot  and  Lambert  for  assault  and  false 
imprisonment.  The  following  is  an  extract  from  the  report  of  the  de- 
cision : 

In  all  civil  acts  the  law  doth  not  so  much  regard  the  intent  of  the 
actor  as  the  loss  and  damage  of  the  party  suffering;  and  therefore 
Mich.,  6  E.  4,  7,  pi.  18.  Trespass  quare  vi  et  armis  clausum  fregit 
and  herbam  suam  pedibus  conculcando  consumpsit  in  six  acres. 
The  defendant  pleads  that  he  hath  an  acre  lying  next  the  said  six 
acres,  and  upon  it  a  hedge  of  thorns,  and  he  cut  the  thorns,  and  they 
ipso  invito  fell  upon  the  plaintiff's  land,  and  the  defendant  took  them 
off  as  soon  as  he  could,  which  is  the  same  trespass ;  and  the  plaintiff 
demurred;  and  adjudged  for  the  plaintiff;  for,  though  a  man  doth  a 
lawful  thing,  yet,  if  any  damage  do  thereby  befall  another,  he  shall 
answer  for  it,  if  he  could  have  avoided  it.  As  if  a  man  lop  a  tree, 
and  the  boughs  fall  upon  another  ipso  invito,  yet  an  action  lies.  And 
the  reason  is  because  he  that  is  damaged  ought  to  be  recompensed. 
But  otherwise  it  is  in  criminal  cases,  for  there  actus  non  facit  reum 
nisi  mens  sit  rea. 

(In-  Read  v.  Friendly  Society,  etc.  [1902]  2  K.  B.  732,  It  Is  said  by  Stirling, 
J.:  "If  an  action  is  brought  for  trespass  to  land,  and  the  defendant  justifies 
under  an  alleged  right  of  way,  judgment  must  go  against  him  if  he  fails  to 
establish  the  right,  however  honestly  he  may  have  believed  in  its  existence. 
If  an  action  is  brought  for  the  publication  of  defamatory  matter,  and  the  de- 
fendant sets  up  that  it  was  published  on  a  privileged  occasion,  he  will  fail  in 
his  defense  unless  the  privilege  is  established,  however  clear  his  good  faith 
may  be." 

Where  defendant  was  engaged  in  blasting  rocks,  and  fragments  were  thrown 
against  and  Injured  the  plaintiff's  dwelling  upon  lands  adjoining,  defendant 
was  held  liable  on  the  ground  of  trespass,  though  no  negligence  or  want  of 
still  in  executing  the  work  was  alleged  or  proved  against  him.  Hay  v.  Cohoes 
Co.,  2  N.  Y.  159,  51  Am.  Dec.  279;  Tremain  v.  Cohoes  Co.,  2  N.  Y.  163,  51  Am. 
Dec.  284.  And  the  same  rule  has  been  applied  where  the  blasting  cast  a  piece 
of  wood  upon  a  person  lawfully  traveling  along  the  public  highway.  Sullivan 
v.  Dunham,  161  N.  Y.  290,  55  N.  E.  923,  47  L.  R.  A.  715,  76  Am.  St.  Rep.  274. 
But  see  Holmes  v.  Mather,  L.  R.  10  Ex.  261;  Stanley  v.  Powell  [1891]  1  Q.  B. 
86.  But  where  the  result  of  blasting  is  to  injure  adjacent  property  by  concus- 
sion and  vibration  only,  without  casting  any  material  on  the  premises,  negl\- 


GENERAL  PRINCIPLES.  119 

gence  In  blasting  must  be  proved,  to  afford  a  cause  of  action.  Benner  v.  At- 
lantic Dredging  Co.,  134  N.  Y.  156,  31  N.  B.  328,  17  L.  R.  A.  220,  30  Am.  St 
Rep.  649;  Booth  v.  Rome,  W.  &  O.  T.  R.  Co.,  140  N.  Y.  267,  35  N.  E.  592,  24  L. 
R.  A.  105,  37  Am.  St.  Rep.  552,  reported  supra,  at  p.  51. 

The  doctrine  laid  down  in  Bessey  v.  Olliot,  and  asserted  in  other  early 
decisions,  that  "in  civil  acts  the  law  doth  not  so  much  regard  the  intent 
of  the  actor  as  the  loss  and  damage  of  the  party  suffering,"  is  discussed 
in  Brown  v.  Collins,  53  N.  H.  442,  16  Am.  Rep.  372,  and  Stanley  ?.  Powell, 
supra,  aiid  its  accordance  with  modern  law  considered.) 


(19  Johns.  381,  10  Am.  Dec.  234.) 
GUILLE  v.  SWAN. 

(Supreme  Court  of  New  York.    January,  1822.) 

TBESPASS  TO  LAND— INTENT. 

A  balloon  in  which  defendant  had  ascended  near  plaintiff's  garden  de- 
scended into  the  garden,  with  defendant's  body  hanging  out  of  the  car,  so 
that  he  was  In  much  danger.  He  called  for  help,  and  a  crowd  of  persons 
broke  into  the  garden,  and  plaintiff's  vegetables  and  flowers  were  beaten 
down  by  the  balloon  and  by  the  people.  Held,  that  defendant  was  liable 
for  all  the  damage  so  sustained  by  plaintiff,  although  the  injury  done  by 
himself  was  involuntary,  and  although  his  ascending  In  the  balloon  was 
not  an  unlawful  act. 

Certiorari  to  review  a  judgment  of  a  justice  of  the  peace. 

Action  of  trespass  by  Swan  against  Guille.  Defendant  had 
ascended  in  a  balloon  in  the  vicinity  of  plaintiff's  garden,  but  the  bal- 
loon descended  into  the  garden,  and  defendant,  whose  body  was 
hanging  out  of  the  car  in  a  very  perilous  position,  called  for  help  to  a 
person  working  in  plaintiff's  field.  More  than  200  people  broke 
through  plaintiff's  fences  into  his  garden,  and  his  vegetables  and 
flowers  were  trodden  and  beaten  down  by  them,  and  by  the  balloon, 
which  dragged  over  them  about  30  feet,  when  defendant  was  taken 
out.  The  damage  done  by  defendant  and  his  balloon  amounted  to 
about  $15,  but  the  crowd  did  much  more,  and  the  total  damage  to 
plaintiff  was  $90.  At  the  trial  before  a  justice  of  the  peace,  he  in- 
structed the  jury  that  defendant  was  liable  for  the  damage  done  to 
plaintiff  by  the  crowd  as  well  as  that  done  by  defendant  himself. 
The  jury  found  a  verdict  for  plaintiff  for  $90,  and  judgment  for  plain- 
tiff was  entered  thereon.  To  review  the  judgment  plaintiff  brought 
certiorari. 

SPENCER,  C.  J.  The  counsel  for  the  plaintiff  in  error  supposes 
that  the  injury  committed  by  his  client  was  involuntary,  and  that 
done  by  the  crowd  was  voluntary,  and  that,  therefore,  there  was  no 
union  of  intent ;  and  that,  upon  the  same  principle  which  would  ren- 
der Guille  answerable  for  the  acts  of  the  crowd,  in  treading  down  and 


120  LAW  OP  TORTS. 

destroying  the  vegetables  and  flowers  of  S.,  he  would  be  responsible 
for  a  battery  or  a  murder  committed  on  the  owner  of  the  premises. 
The  intent  with  which  an  act  is  done  is  by  no  means  the  test  of  the 
liability  of  a  party  to  an  action  of  trespass.  If  the  act  cause  the  im- 
mediate injury,  whether  it  was  intentional  or  unintentional,  trespass 
is  the  proper  action  to  redress  the  wrong.  It  was  so  decided,  upon  a 
review  of  all  the  cases,  in  Percival  v.  Hickey,  18  Johns.  257,  9  Am. 
Dec.  210.  Where  an  immediate  act  is  done  by  the  co-operation  or 
the  joint  act  of  several  persons,  they  are  all  trespassers,  and  may  be 
sued  jointly  or  severally ;  and  any  one  of  them  is  liable  for  the  injury 
done  by  all.  To  render  one  man  liable  in  trespass  for  the  acts  of 
others,  it  must  appear,  either  that  they  acted  in  concert,  or  that  the  act 
of  the  individual  sought  to  be  charged  ordinarily  and  naturally  pro- 
duced the  acts  of  the  others.  The  case  of  Scott  v.  Shepherd,  2  W.  Bl. 
892,  is  a  strong  instance  of  the  responsibility  of  an  individual  who 
was  the  first,  though  not  the  immediate,  agent  in  producing  an  injury. 
Shepherd  threw  a  lighted  squib,  composed  of  gunpowder,  into  a 
market-house  where  a  large  concourse  of  people  were  assembled. 
It  fell  on  the  standing  of  Y.,  and,  to  prevent  injury,  it  was  thrown 
off  his  standing,  across  the  market,  where  it  fell  on  another  standing. 
From  thence,  to  save  the  goods  of  the  owner,  it  was  thrown  to  an- 
other part  of  the  market-house,  and,  in  so  throwing  it,  it  struck  the 
plaintiff  in  the  face,  and,  bursting,  put  out  one  of  his  eyes.  It  was 
decided,  by  the  opinion  of  three  judges  against  one,  that  Shepherd 
was  answerable  in  an  action  of  trespass  and  assault  and  battery.  De 
Grey,  C.  J.,  held  that  throwing  the  squib  was  an  unlawful  act,  and 
that,  whatever  mischief  followed,  the  person  throwing  it  was  the  au- 
thor of  the  mischief.  All  that  was  done  subsequent  to  the  original 
throwing  was  a  continuation  of  the  first  force  and  first  act.  Any  in- 
nocent person  removing  the  danger  from  himself  was  justifiable ;  the 
blame  lights  on  the  first  thrower;  the  new  direction  and  new  force 
flow  out  of  the  first  force.  He  laid  it  down  as  a  principle  that  every 
one  who  does  an  unlawful  act  is  considered  as  the  doer  of  all  that  fol- 
lows. A  person  breaking  a  horse  in  Lincolns-Inn-Fields  hurt  a  man, 
and  it  was  held  that  trespass  would  lie.  In  Learne  v.  Bray,  3  East, 
595,  Lord  Ellenborough  said :  "If  I  put  in  motion  a  dangerous 
thing,  as  if  I  let  loose  a  dangerous  animal,  and  leave  to  hazard  what 
may  happen,  and  mischief  ensue,  I  am  answerable  in  trespass;  and 
if  one,"  he  says,  "put  an  animal  or  carriage  in  motion,  which  causes 
an  immediate  injury  to  another,  he  is  the  actor, — the  causa  causans." 
I  will  not  say  that  ascending  in  a  balloon  is  an  unlawful  act,  for  it  is 
not  so ;  but  it  is  certain  that  the  aeronaut  has  no  control  over  its  mo- 
tion horizontally.  He  is  at  the  sport  of  the  winds,  and  is  to  descend 
when  and  how  he  can.  His  reaching  the  earth  is  a  matter  of  hazard. 
He  did  descend  on  the  premises  of  the  plaintiff  below,  at  a  short  dis- 
tance from  the  place  where  he  ascended.  Now,  if  his  descent,  under 


GENERAL  PRINCIPLES.  121 

such  circumstances,  would  ordinarily  and  naturally  draw  a  crowd  of 
people  about  him,  either  from  curiosity,  or  for  the  purpose  of  rescu- 
ing him  from  a  perilous  situation,  all  this  he  ought  to  have  foreseen, 
and  must  be  responsible  for.  Whether  the  crowd  heard  him  call  for 
help  or  not  is  immaterial.  He  had  put  himself  in  a  situation  to -in- 
vite help,  and  they  rushed  forward,  impelled,  perhaps,  by  the  double 
motive  of  rendering  aid,  and  gratifying  a  curiosity  which  he  had  ex- 
cited. Can  it  be  doubted  that,  if  the  plaintiff  in  error  had  beckoned 
to  the  crowd  to  come  to  his  assistance,  he  would  be  liable  for  their 
trespass  in  entering  the  inclosure?  I  think  not.  In  that  case  they 
would  have  been  co-trespassers,  and  we  must  consider  the  situation 
in  which  he  placed  himself,  voluntarily  and  designedly,  as  equivalent 
to  a  direct  request  to  the  crowd  to  follow  him.  In  the  present  case, 
he  did  call  for  help,  and  may  have  been  heard  by  the  crowd.  He  is 
therefore  undoubtedly  liable  for  all  the  injury  sustained. 
Judgment  affirmed. 

(For  other  cases  holding  that  a  wrong  Intent  is  not  a  necessary  element  to 
constitute  a  tort,  see  Striegel  v.  Moore,  55  Iowa,  88,  7  N.  W.  413  [trespass  to 
lands];  Carltou  v.  Henry,  129  Ala.  479,  29  South.  924;  Morgan  v.  O'Daniel 
[Ky.]  53  S.  W.  1040  [assault];  Anderson  v.  Arnold's  Ex'r,  79  Ky.  370;  Vosburg 
v.  Putney,  80  Wis.  523,  50  N.  W.  403,  14  L.  R.  A.  226,  27  Am.  St.  Rep.  47; 
Chapman  v.  State,  78  Ala.  463,  56  Am.  Rep.  42  [cases  of  assault  and  battery]. 
But  in  such  torts  as  fraud,  malicious  prosecution,  and  other  wrongs  involving 
malice,  a  wrongful  intent  is  necessary  [see  the  cases  hereinafter  on  these  top- 
ics]. That  a  wrongful  intent  accompanying  a  lawful  act  does  not  give  a  cause 
of  action,  see  supra,  pp.  6,  71 ;  but  that  malicious  acts,  under  other  circum- 
stances, will  give  a  cause  of  action  if  they  occasion  damage,  see  supra,  pp. 
69,  71.) 


(61  N.  Y.  477.) 

PEASE  et  al.  v.  SMITH  et  al.  (in  part). 
(Court  of  Appeals  of  New  York.    January  Term,  1875.) 

CONVERSION — NOTICE  OF  OWNER'S  TITLE — INTENT. 

Where  goods  were  stolen  from  the  owners  and  sold,  the  purchasers,  by 
reselling  them,  were  guilty  of  conversion,  though  no  demand  was  made 
for  the  goods  while  in  their  possession,  and  though  they  had  no  knowledge 
of  the  title  of  the  real  owners.  A  wrongful  intent  is  not  an  essential 
element  in  a  conversion. 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme  Court 
in  the  Third  Judicial  Department. 

Action  for  conversion  of  a  quantity  of  law  blanks. 

Defendants  purchased  from  a  junk  dealer,  Moses  K.  Perry,  the  law 
blanks  which  had  been  stolen  from  plaintiffs  by  a  porter  in  their  em- 
ploy. Defendants  sold  the  blanks  in  good  faith  before  any  demand 
was  made  upon  them.  A  demand  was  made  of  the  defendants  for  the 
value  of  the  blanks  before  the  commencement  of  the  action,  but  the  d «- 


J22  LAW  OF  TORTS. 

fendants  refused  to  pay.     From  a  judgment  entered  on  a  verdict  for 
plaintiffs  (5  Lans.  519),  defendants  appeal.     Affirmed. 

D WIGHT,  C.  It  is  claimed  that  the  judge  erred  at  the  trial  in  re- 
fusing to  grant  a  nonsuit,  because  the  defendants  bought  the  goods  in 
controversy  in  the  course  of  trade,  and  had  sold  them  before  any  claim 
was  made  by  the  owners.  It  is  insisted  by  the  appellants  that  it  is  a  pre- 
requisite to  a  valid  claim  for  conversion,  in  such  a  case,  that  a  demand 
should  have  been  made  for  the  goods  while  they  were  in  the  defendants' 
possession,  and  before  their  sale,  and  that  there  can  be  no  conversion, 
unless  control  over  the  property  was  exercised  with  knowledge  of 
the  plaintiffs'  rights.  This  proposition  is  untenable.  The  assumed 
sale  by  the  porter  of  the  plaintiffs  to  Perry  was  wholly  nugatory,  and 
conveyed  no  title.  Saltus  v.  Everett,  20  Wend.  267,  32  Am.  Dec. 
541 ;  McGoldrick  v.  Willits,  52  N.  Y.  612.  On  like  grounds,  the  sale 
by  Perry  to  the  defendants  was  without  effect.  They  were  construct- 
ively in  possession  of  the  plaintiffs'  property  without  the  consent  of 
the  latter.  They  even  sent  their  own  carts  to  transfer  the  goods 
when  sold  to  Allen  Bros.  This  exercise  of  an  act  of  ownership  or 
dominion  over  the  plaintiffs'  property,  assuming  to  sell  and  dispose 
of  it  as  their  own,  was,  within  reason  and  the  authorities,  an  act  of 
conversion  to  their  own  use.  The  assumed  act  of  ownership  was  in- 
consistent with  the  dominion  of  the  plaintiffs,  and  this  is  of  the  es- 
sence of  a  conversion.  Knowledge  and  intent  on  the  part  of  the  de- 
fendants are  not  material.  So  long  as  the  defendants  had  exercised 
no  act  of  ownership  over  the  property,  and  had  acted  in  good  faith, 
a  demand  and  refusal  would  be  necessary  to  put  them  in  the  wrong 
and  to  constitute  conversion.  Until  such  demand  there  is  no  appar- 
ent inconsistency  between  their  possession  and  the  plaintiffs'  owner- 
ship. After  a  sale  has  been  made  by  the  defendants,  they  have  as- 
sumed to  be  the  owners,  and  will  be  estopped  to  deny,  in  an  action  by 
the  lawful  owner,  the  natural  consequences  of  their  act,  and  to  resist 
an  action  for  the  value  of  the  goods.  The  principle  is  well  stated  by 
Alderson,  B.,  in  Fouldes  v.  Willoughby,  8  M.  &  W.  540:  "Any 
asportation  of  a  chattel  for  the  use  of  the  defendant  or  a  third  person 
amounts  to  a  conversion,  for  this  simple  reason,  that  it  is  an  act  in- 
consistent with  the  general  right  of  dominion  which  the  owner  of  a 
chattel  has  in  it,  who  is  entitled  to  the  use  of  it  at  all  times  and  in  all 
places."  In  the  same  spirit,  "conversion"  is  defined,  in  a  very  recent 
case,  to  be  an  unauthorized  act  which  deprives  another  of  his  prop- 
erty permanently  or  for  an  indefinite  time.  Hiort  v.  Bott,  L.  R.  9 
Ex.  86  [A.  D.  1874].  So,  it  is  said  in  Boyce  v.  Brockway,  31  N. 
Y.  490,  that  a  wrongful  intent  is  not  an  essential  element  in  a  conver- 
sion. It  is  enough  that  the  rightful  owner  has  been  deprived  of  his 
property  by  some  unauthorized  act  of  another  assuming  dominion  or 
control  over  it.  See  Hollins  v.  Fowler  (House  of  Lords,  July  6, 


GENERAL  PRINCIPLES.  123 

1875).  No  manual  taking  on  the  defendant's  part  is  necessary. 
Bristol  v.  Burt,  7  J.  R.  254;  Connah  v.  Hale,  23  Wend.  462.  The 
case  of  Harris  v.  Saunders,  2  Strob.  Eq.  370,  resembles  closely  the 
case  at  bar.  The  defendant,  having  the  property  of  the  plaintiff  in 
his  own  hands  by  purchase  from  one  who  had  no  title,  sold  it  to  an- 
other, who  carried  it  beyond  the  plaintiff's  reach,  and  received  the 
purchase  money.  These  acts  were  held  to  amount  to  a  conversion, 
though  the  defendant  was  not  aware  of  the  plaintiff's  title.  As,  ac- 
cording to  these  views,  the  conversion  took  place  at  the  moment  of 
the  unauthorized  sale  by  the  present  defendants,  no  demand  was  nec- 
essary, the  sole  object  of  a  demand  being  to  turn  an  otherwise  lawful 
possession  into  an  unlawful  one,  by  reason  of  a  refusal  to  comply 
with  it,  and  thus  to  supply  evidence  of  a  conversion.  Esmay  v.  Fan- 
ning, 9  Barb.  176;  Vincent  v.  Conklin,  I  E.  D.  Smith,  203;  Glassner 
v.  Wheaton,  2  E.  D.  Smith,  352 ;  Munger  v.  Hess,  28  Barb.  75.  After 
a  wrongful  taking  and  carrying  away  of  the  property,  the  cause  of 
action  has  become  complete  without  further  act  on  the  plaintiff's  part. 
Brewster  v.  Silliman,  38  N.  Y.  423;  Hanmer  v.  Wilsey,  17  Wend.  91 ; 
Otis  v.  Jones,  21  Wend.  394. 

On  the  whole,  no  error  was  committed  at  the  trial,  and  the  judg- 
ment of  the  court  below  should  be  affirmed.  All  concur. 

Judgment  affirmed. 

(To  the  same  effect  as  to  conversion  are  Roe  v.  Campbell,  40  Hun,  49;  Lovell 
v.  Shea,  18  N.  Y.  Supp.  193 ;  Lev!  v.  Booth,  58  Md.  305,  42  Am.  Rep.  332 ;  Gore 
v.  Izer,  64  Neb.  843,  90  N.  W.  758 ;  Johnson  v.  Martin,  87  Minn.  370,  92  N.  W. 
221,  59  L.  R.  A.  733,  94  Am.  St  Rep.  706 ;  Hollins  v.  Fowler,  L.  R.  7  H.  L.  757.) 


Same  principle;  lunatics  liable  for  torts. 

(121  111.  660,  13  N.  E.  239,  2  Am.  St.  Rep.  140.) 

McINTYRE  v.  SHOLTY  (in  part). 
(Supreme  Court  of  Illinois.    September  27,  1887.) 

TOBTIOTTS  ACTS  OF  LUNATIC— LIABILITY. 

Though  a  lunatic  is  not  punishable  criminally,  he  is  liable  In  a  civil 
action  for  torts  committed  by  him.  Hence  where  a  lunatic  shot  and 
killed  a  person,  and  very  soon  afterwards  died  himself,  held,  that  an 
action  was  maintainable  against  his  administrator  under  the  statute  al- 
lowing a  recovery  of  damages  for  an  injury  causing  death. 

Error  to  Appellate  Court,  Third  District;  Owen  T.  Reeves,  Judge. 

MAGRUDER,  J.     This  is  an  action  of  trespass,  brought  by  de- 
fendant in  error  against  plaintiff  in  error,  in  the  circuit  court  of  Me- 


124  LAW  OF  TORTS. 

Lean  county,  under  the  "Act  requiring  compensation  for  causing 
death  by  wrongful  act,  neglect,  or  default ;"  being  chapter  70  of  the 
Revised  Statutes,  entitled  "Injuries."  Kurd,  Rev.  St.  1885,  p.  695. 
Jury  was  waived  by  agreement,  and  the  case  was  tried  without  a  jury 
before  the  judge  of  the  circuit  court,  who  gave  judgment  for  the 
plaintiff  for  $2,500.  This  judgment  has  been  affirmed  by  the  appel- 
late court,  and  is  brought  before  us  for  review  by  writ  of  error  to  the 
latter  court. 

Hannah  Sholty  was  the  wife  of  Levi  Sholty,  a  farmer  living  in  Mc- 
Lean county,  near  Bloomington.  About  February  17,  1886,  a  work- 
ing-man upon  Levi  Sholty's  farm  discovered  a  man  in  the  barn,  who, 
to  all  appearances,  had  been  concealing  himself  there  for  some  time. 
The  person  so  concealed  is  proven  to  have  been  defendant's  intestate, 
Benjamin  D.  Sholty,  a  brother  of  Levi  Sholty.  Some  efforts  seem  to 
have  been  made  on  February  I7th  or  i8th  to  get  the  officers  of  the 
law  in  Bloomington  to  go  out  to  the  farm  and  arrest  Benjamin  D. 
Sholty,  called  by  the  witness  David  Sholty.  This  effort,  however, 
failed.  Accordingly,  Levi  Sholty  and  his  hired  man,  and  a  number 
of  his  neighbors,  gathered  at  his  house  on  the  afternoon  of  February 
18,  1886,  for  the  purpose  of  watching  for  the  intruder,  and  getting 
him  out  of  his  hiding-place.  The  barn  was  40  or  50  feet  wide,  and 
from  80  to  100  feet  long.  It  was  situated  about  150  or  200  feet  north- 
west from  the  house.  The  granary  was  in  the  western  end  of  the 
barn,  and  in  the  end  that  was  furthest  from  the  house.  About  6 
o'clock  in  the  evening,  David  Sholty  was  discovered  in  the  granary 
by  his  brother  Levi  and  one  McCoy,  who  were  on  watch  just  outside 
of  the  granary  door.  He  shot  at  them  twice  with  a  pistol,  while  they 
were  trying  to  prevent,  his  escape,  and  to  capture  him.  Others  who 
were  waiting  in  the  house  came  to  their  assistance.  A  rope  was  ob- 
tained, with  the  intention  of  tying  him,  if  captured.  Presently  there 
was  a  cry  of  fire,  and  the  flames  were  seen  to  be  breaking  out  at  the 
eastern  end  of  the  barn,  being  the  end  nearest  towards  the  house.  At 
this  time  Mrs.  Hannah  Sholty,  plaintiff's  intestate,  went  from  the 
house  towards  the  barn,  and  had  advanced  about  half  of  the  distance 
between  the  two,  when  David  Sholty  appeared  in  the  door  at  the  east- 
ern end  of  the  barn,  with  a  shot-gun.  He  was  plainly  visible  in  the 
light  made  by  the  fire  that  had  broken  out.  He  called  upon  Mrs. 
Sholty  and  her  daughter  Mary,  who  was  with  her,  to  stop.  They 
stopped,  turned,  and  had  advanced  a  few  feet  on  their  way  back  to- 
wards the  house,  when  David  Sholty  fired  at  them  with  the  gun  in 
his  hand.  Both  were  shot.  The  daughter  was  wounded  in  the  wrist, 
and  the  mother  was  killed.  This  action  is  brought  by  her  husband, 
as  administrator  of  her  estate,  to  recover  damages  for  her  death, 
against  the  administrator  of  the  estate  of  David  Sholty,  who  is  said  to 
have  perished  in  the  flames  of  the  burning  barn. 


GENERAL   PRINCIPLES.  125 

The  defendant  introduced  no  testimony,  except  that  the  examina- 
tion of  one  witness  was  begun,  and  abandoned,  after  a  few  prelim- 
inary questions,  on  account  of  the  ruling  of  the  court  as  hereafter 
stated.  The  defense  proposed  to  show  by  the  witness  on  the  stand, 
and  by  others  there  present  in  court,  that  defendant's  intestate,  Ben- 
jamin D.  Sholty,  was  insane  at  the  time  Mrs.  Sholty  was  killed.  The 
court  refused  to  receive  evidence  of  his  insanity,  and  exception  was 
taken  to  the  ruling.  The  question  presented  relates  to  the  liability  of 
an  insane  person  for  injuries  committed  by  him. 

It  is  well  settled  that,  though  a  lunatic  is  not  punishable  criminally, 
he  is  liable  in  a  civil  action  for  any  tort  he  may  commit.  However 
justly  this  doctrine  may  have  been  originally  subject  to  criticism,  on 
the  grounds  of  reason  and  principle,  it  is  now  too  firmly  supported 
by  the  weight  of  authority  to  be  disturbed.  It  is  the  outcome  of  the 
principle  that  in  trespass  the  intent  is  not  conclusive.  Mr.  Sedgwick, 
in  his  work  on  Damages,  (marg.  page  456,)  says  that,  on  principle,  a 
lunatic  should  not  be  held  liable  for  his  tortious  acts.  Opposed  to 
his  view,  however,  is  a  majority  of  the  decisions  and  text  writers. 
There  certainly  can  be  nothing  wrong  or  unjust  in  a  verdict  which 
merely  gives  compensation  for  the  actual  loss  resulting  from  an  in- 
jury inflicted  by  a  lunaHc.  He  has  properly  no  will.  His  acts  lack 
the  element  of  intent,  or  intention.  Hence  it  would  seem  to  follow 
that  the  only  proper  measure  of  damages  in  an  action  against  him  for 
a  wrong,  is  the  mere  compensation  of  the  party  injured.  Punish- 
ment is  not  the  object  of  the  law  when  persons  unsound  in  mind  are 
the  wrong-doers.  There  is,  to  be  sure,  an  appearance  of  hardship 
in  compelling  one  to  respond  for  that  which  he  is  unable  to  avoid,  for 
want  of  the  control  of  reason.  But  the  question  of  liability  in  these 
cases  is  one  of  public  policy.  If  an  insane  person  is  not  held  liable 
for  his  torts,  those  interested  in  his  estate,  as  relatives,  or  otherwise, 
might  not  have  a  sufficient  motive  to  so  take  care  of  him  as  to  de- 
prive him  of  opportunities  for  inflicting  injuries  upon  others.  There 
is  more  injustice  in  denying  to  the  injured  party  the  recovery  of  dam- 
ages for  the  wrong  suffered  by  him,  than  there  is  in  calling  upon  the 
relatives  or  friends  of  the  lunatic  to  pay  the  expense  of  his  confine- 
ment, if  he  has  an  estate  ample  enough  for  that  purpose.  The  lia- 
bility of  lunatics  for  their  torts  tends  to  secure  a  more  efficient  cus- 
tody and  guardianship  of  their  persons.  Again,  if  parties  can  escape 
the  consequences  of  their  injurious  acts  upon  the  plea  of  lunacy, 
there  \vill  be  a  strong  temptation  to  simulate  insanity,  with  a  view  of 
masking  the  malice  and  revenge  of  an  evil  heart.  The  views  here 
expressed  are  sustained  by  the  following  authorities :  Cooley,  Torts, 
99-103:  2.  Saund.  PI.  &  Ev.  318;  Shear.  &  R.  Neg.  §  57;  Weaver  v. 
Ward,  Hob.  134;  Morse  v.  Crawford,  17  Vt.  499,  44  Am.  Dec.  349; 
Behrens  v.  McKenzie,  23  Iowa,  333,  92  Am.  Dec.  428;  Krom  v, 
Schoonmaker,  3  Barb.  647 ;  also  cases  in  note  to  said  case,  in  Ewel! 


126  LAW  OF  TORTS. 

Lead.  Cas.  642.  In  the  light  of  the  principles  thus  announced  we 
find  no  error  in  the  ruling  of  the  circuit  court  upon  this  subject. 

Judgment  affirmed. 

(The  same  is  held  In  the  following  cases:  Williams  v.  Hays,  143  N.  Y.  442, 
38  N.  B.  449,  26  L.  R.  A.  153,  42  Am.  St.  Rep.  743  [cf.  S.  C.  157  N.  Y.  541,  52 
N.  E.  589,  43  L.  R.  A.  253,  68  Am.  St.  Rep.  797];  Jewell  v.  Colby,  66  N.  H.  399, 
24  Atl.  902;  Holdom  v.  Ancient  Order  of  United  Workmen,  159  111.  619,  43  N. 
E.  772,  31  L.  R.  A.  67,  50  Am.  St.  Rep.  183.  In  Williams  v.  Hays,  supra,  it  is 
said:  "The  general  rule  is  that  an  insane  person  is  just  as  responsible  for  his 
torts  as  a  sane  person,  and  the  rule  applies  to  all  torts,  except  perhaps  those 
In  which  malice,  and  therefore  Intention,  actual  or  imputed,  is  a  necessary 
ingredient,  like  libel,  slander,  and  malicious  prosecution."  Irvine  v.  Gibson 
[Ky  ]  77  S.  W.  1106,  is  a  recent  case  holding  that  an  insane  person  is  not  lia- 
ble for  slander.) 


(132  Mass.  87,  42  Am.  Rep.  423.) 

MORAIN  v.  DEVLIN. 
(Supreme  Judicial  Court  of  Massachusetts.     January  3.  1882.) 

NEGLIGENCE— DANGEROUS  PBEMISES— INSANITY  OF  OWNER. 

The  owner  of  a  building  may  be  liable  for  personal  injuries  to  another 
caused  by  the  defective  condition  of  the  building,  although  such  owner 
is  insane,  and  although  a  guardian  has  been  appointed  for  him  and  has 
the  care  and  management  of  his  estate. 

Exceptions  from  Superior  Court. 

Action  of  tort  by  Sophia  Morain  against  Margaret  Devlin,  for  per- 
sonal injuries  to  plaintiff,  alleged  to  have  been  caused  by  a  defect  in 
a  door-step  of  a  tenement  building  belonging  to  defendant.  At  the 
trial  it  was  admitted  that,  since  a  time  several  years  before  the  acci- 
dent to  plaintiff,  defendant  had  been  insane,  and  had  been  confined  in 
a  hospital  for  lunatics ;  and  that,  at  that  time,  a  guardian  for  defend- 
ant had  been  appointed,  who  had  ever  since  held  the  appointment, 
and  had  had  the  care  and  management  of  all  the  property  of  defend- 
ant. Said  guardian  was  also  appointed  guardian  ad  litem  for  defend- 
ant. A  request  was  presented  to  the  judge,  on  behalf  of  defendant, 
for  an  instruction  to  the  jury  that,  on  these  facts,  as  a  matter  of  law, 
the  action  could  not  be  sustained,  but  the  request  was  refused.  The 
jury  found  a  verdict  for  plaintiff.  Defendant  alleged  exceptions  to 
the  refusal  to  give  the  instruction  requested. 

GRAY,  C.  J.  By  the  common  law,  as  generally  stated  in  the 
books,  a  lunatic  is  civilly  liable  to  make  compensation  in  damages  to 
persons  injured  by  his  acts,  although,  being  incapable  of  criminal  in- 
tent, he  is  not  liable  to  indictment  and  punishment.  Bac.  Max.  reg. 
7;  Weaver  v.  Ward,  Hob.  134;  2  Rolle,  Abr.  547;  I  Hale,  P.  C.  15, 
16;  I  Hawk,  c.  I,  §  5;  Bac.  Abr.  "Idiots  &  Lunatics,"  E;  Haycraft 


GENERAL  PRINCIPLES.  127 

v.  Creasy,  2,  East,  92,  104 ;  I  Chit.  PL  (2d  Amer.  Ed.)  65 ;  Morse  v. 
Crawford,  17  Vt.  499,  44  Am.  Dec.  349;  Cross  v.  Kent,  32  Md.  581 ; 
Ward  v.  Conatser,  4  Baxt.  64;  Bullock  v.  Babcock,  3  Wend.  391,  393, 
394 ;  Behrens  v.  McKenzie,  23  Iowa,  333,  343,  92  Am.  Dec.  428 ;  Bank 
v.  Moore,  78  Pa.  407,  412,  21  Am.  Rep.  24.  See,  also,  Dickinson  v. 
Barber,  9  Mass.  225,  6  Am.  Dec.  58;  Brown  v.  Howe,  9  Gray,  84,  85, 
69  Am.  Dec.  276.  But  this  case  does  not  require  the  affirmance  of 
so  broad  a  proposition.  This  is  not  an  action  for  a  wrong  done  by 
the  personal  act  or  neglect  of  the  lunatic,  but  for  an  injury  suffered 
by  reason  of  the  defective  condition  of  a  place,  not  in  the  exclusive 
occupancy  and  control  of  a  tenant,  upon  real  estate  of  which  the 
lunatic  himself,  and  not  his  guardian,  is  the  owner.  Harding  v. 
Larned,  4  Allen,  426;  Harding  v.  Weld,  128  Mass.  587,  591.  The 
owner  of  real  estate  is  liable  for  such  a  defect,  although  not  caused 
by  his  own  neglect,  but  by  that  of  persons  acting  in  his  behalf  or  un- 
der contract  with  him.  Looney  v.  McLean,  129  Mass.  33,  37  Am. 
Rep.  295;  Gorham  v.  Gross,  125  Mass.  232,  28  Am.  Rep.  234;  Bart- 
lett  v.  Gas-Light  Co.,  117  Mass.  533,  19  Am.  Rep.  421.  And  there 
is  no  precedent  and  no  reason  for  holding  that  a  lunatic,  having  the 
benefits,  is  exempt  from  the  responsibilities  of  ownership  of  real  es- 
tate. The  ruling  requested  was  therefore  rightly  refused. 
Exceptions  overruled. 

MORTON  and  ALLEN,  JJ.,  absent. 


There  is,   however,  no   liability  in  tort  for  purely  acci- 
dental injuries. 

(6  Cush.  292.) 

BROWN  v.  KENDALL  (in  part). 
(Supreme  Judicial  Court  of  Massachusetts.     October  Term,  1850.) 

ASSAULT  AND  BATTERY— ACCIDENTAL  INJURY. 

Defendant,  while  endeavoring  to  part  fighting  dogs,  one  of  which  was 
his  own,  by  striking  them  with  a  stick,  retreated  backwards  before  them 
towards  the  place  where  plaintiff,  the  owner  of  the  other  dog,  had  been 
standing,  plaintiff  at  the  same  time  advancing  a  step  or  two  towards  them; 
and  defendant,  in  raising  his  stick  to  strike  the  dogs,  plaintiff  being  be- 
hind him,  unintentionally  struck  plaintiff  in  the  eye  with  the  stick,  causing 
a  severe  injury.  Held,  that  defendant's  act  in  attempting  to  part  the  dogs 
was  lawful  and  proper,  and  if,  in  doing  it,  he  used  due  care  and  all  proper 
precautions  to  avoid  hurt  to  others,  the  injury  to  plaintiff  was  the  result 
of  pure  accident,  or  was  involuntary  and  unavoidable,  and  defendant  was 
not  liable  therefor. 


128  LAW  OF  TORTS. 

Exceptions  from  Court  of  Common  Pleas ;  Wells,  C.  J. 

Action  of  trespass  by  George  Brown  against  George  K.  Kendall 
for  assault  and  battery.  Pending  the  suit  defendant  died,  and  his 
executrix  was  substituted.  At  a  trial  it  appeared  from  the  evidence 
that  while  two  dogs,  belonging,  respectively,  to  plaintiff  and  to  de- 
fendant, were  fighting,  defendant,  in  order  to  separate  them,  took  a 
stick  and  began  beating  them.  Plaintiff  was  also  present,  and  look- 
ing on,  at  the  distance  of  about  a  rod  from  the  dogs,  and  advanced  a 
step  or  two  towards  them.  The  dogs,  as  they  struggled  together, 
also  approached  plaintiff,  and  defendant  retreated  backwards  from 
them,  striking  them  with  the  stick.  As  defendant  thus  approached 
plaintiff,  having  his  back  towards  the  latter,  in  raising  his  stick  over 
his  shoulder  to  strike  the  dogs  the  stick  accidentally  struck  plaintiff 
in  the  eye,  and  injured  it  severely.  Defendant  requested  the  judge  to 
instruct  the  jury  that,  "if  both  the  plaintiff  and  defendant  at  the  time 
of  the  blow  were  using  ordinary  care,  or  if  at  that  time  the  defendant 
was  using  ordinary  care  and  the  plaintiff  was  not,  or  if  at  that  time 
both  plaintiff  and  defendant  were  not  using  ordinary  care,  then  the 
plaintiff  could  not  recover."  The  judge  declined  to  give  these  instruc- 
tions. The  jury  found  a  verdict  for  plaintiff.  Defendant  alleged  ex- 
ceptions. 

SHAW,  C.  J.  This  is  an  action  of  trespass  vi  et  armis,  brought  by 
George  Brown  against  George  K.  Kendall,  for  an  assault  and  bat- 
tery; and,  the  original  defendant  having  died  pending  the  action,  his 
executrix  has  been  summoned  in.  The  rule  of  the  common  law  by 
which  the  action  would  abate  by  the  death  of  either  party  is  reversed 
in  this  commonwealth  by  statute,  which  provides  that  actions  of  tres- 
pass for  assault  and  battery  shall  survive.  Rev.  St.  c.  93,  §  7.  The 
facts  set  forth  in  the  bill  of  exceptions  preclude  the  supposition  that 
the  blow  inflicted  by  the  hand  of  the  defendant  upon  the  person  of 
the  plaintiff  was  intentional.  The  whole  case  proceeds  on  the  same 
assumption,  that  the  damage  sustained  by  the  plaintiff  from  the  stick 
held  by  the  defendant  was  inadvertent  and  unintentional;  and  the 
case  involves  the  question  how  far,  and  under  what  qualifications,  the 
party  by  whose  unconscious  act  the  damage  was  done  is  responsible 
for  it.  We  use  the  term  "unintentional"  rather  than  "involuntary," 
because,  in  some  of  the  cases,  it  is  stated  that  the  act  of  holding  and 
using  a  weapon  or  instrument,  the  movement  of  which  is  the  immedi- 
ate cause  of  hurt  to  another,  is  a  voluntary  act,  although  its  particu- 
lar effect  in  hitting  and  hurting  another  is  not  within  the  purpose  or 
intention  of  the  party  doing  the  act. 

It  appears  to  us  that  some  of  the  confusion  in  the  cases  on  this 
subject  has  grown  out  of  the  long-vexed  question,  under  the  rule  of 
the  common  law,  whether  a  party's  remedy,  where  he  has  one,  should 
be  sought  in  an  action  of  the  case  or  of  trespass.  This  is  very  dis- 


GENERAL  PRINCIPLES.  129 

tinguishable  from  the  question  whether  in  a  given  case  any  action 
will  lie.  The  result  of  these  cases  is  that,  if  the  damage  complained 
of  is  the  immediate  effect  of  the  act  of  the  defendant,  trespass  vi  et 
armis  lies;  if  consequential  only,  and  not  immediate,  case  is  the 
proper  remedy.  Leame  v.  Bray,  3  East,  593 ;  Huggett  v.  Montgom- 
ery, (Day's  Ed.)  2.  Bos.  &  P.  (N.  R.)  446,  and  notes.  In  these  discus- 
sions, it  is  frequently  stated  by  the  judges  that,  when  one  receives  in- 
jury from  the  direct  act  of  another,  trespass  will  lie.  But  we  think 
this  is  said  in  reference  to  the  question  whether  trespass  and  not  case 
will  lie,  assuming  that  the  facts  are  such  that  some  action  will  lie. 
These  dicta  are  no  authority,  we  think,  for  holding  that  damage  re- 
ceived by  a  direct  act  of  force  from  another  will  be  sufficient  to  main- 
tain an  action  of  trespass,  whether  the  act  was  lawful  or  unlawful, 
and  ne:the»-  willful,  intentional,  nor  careless.  In  the  principal  case 
cited.  Leame  v.  Bray,  the  damage  arose  from  the  act  of  the  defendant 
in  driving  on  the  wrong  side  of  the  road,  in  a  dark  night,  which  was 
clearly  negligent,  if  not  unlawful.  In  the  course  of  the  argument  of 
that  case,  (page  595,)  Lawrence,  J.,  said:  "There  certainly  are  cases 
in  the  books  where,  the  injury  being  direct  and  immediate,  trespass 
has  beea  holden  to  lie,  though  the  injury  was  not  intentional."  The 
term  "injury"  implies  something  more  than  damage;  but,  indepen- 
dently of  that  consideration,  the  proposition  may  be  true,  because, 
though  the  injury  was  unintentional,  the  act  may  have  been  unlawful 
or  negligent ;  and  the  cases  cited  by  him  are  perfectly  consistent  with 
that  supposition.  So  the  same  learned  judge,  in  the  same  case,  says 
(page  597) :  "No  doubt  trespass  lies  against  one  who  drives  a  car- 
riage against  another,  whether  done  willfully  or  not."  But  he  imme- 
diately adds:  "Suppose  one  who  is  driving  a  carriage  is  negligent, 
and  heedlessly  looking  about  him,  without  attending  to  the  road 
when  persons  are  passing,  and  thereby  runs  over  a  child  and  kills 
him,  is  it  not  manslaughter?  And,  if  so,  it  must  be  trespass;  for 
every  manslaughter  includes  trespass ;"  showing  what  he  understood 
by  a  case  not  willful. 

We  think,  as  the  result  of  all  the  authorities,  the  rule  is  correctly 
stated  by  Mr.  Greenleaf  that  the  plaintiff  must  come  prepared  with 
evidence  to  show  either  that  the  intention  was  unlawful,  or  that  the 
defendant  was  in  fault ;  for  if  the  injury  was  unavoidable,  and  the  con- 
duct of  the  defendant  was  free  from  blame,  he  will  not  be  liable.  2. 
Greenl.  Ev.  §§  85-92;  Wakeman  v.  Robinson,  i  Bing.  213.  If,  in  the 
prosecution  of  a  lawful  act,  a  casualty  purely  accidental  arises,  no 
action  can  be  supported  for  an  injury  arising  therefrom.  Davis  v. 
Saunders,  2  Chit.  639;  Com.  Dig.  "Battery,"  A,  (Day's  Ed.,)  and 
notes ;  Vincent  v.  Stinehour,  7  Vt.  62.  In  applying  these  rules  to  the 
present  case,  we  can  perceive  no  reason  why  the  instructions  asked 
for  by  the  defendant  ought  not  to  have  been  given,  to  this  effect,  that 
if  both  plaintiff  and  defendant  at  the  time  of  the  blow  were  using  or- 
CHASE(2o  ED.)— 9 


130  LAW  OF  TORTS. 

dinary  care,  or  if  at  that  time  the  defendant  was  using  ordinary  care, 
and  the  plaintiff  was  not,  or  if  at  that  time  both  the  plaintiff  and  de- 
fendant were  not  using  ordinary  care,  then  the  plaintiff  could  not  re- 
cover. 

In  using  this  term  "ordinary  care,"  it  may  be  proper  to  state  that 
what  constitutes  ordinary  care  will  vary  with  the  circumstances  of 
cases.  In  general,  it  means  that  kind  and  degree  of  care  which  pru- 
dent and  cautious  men  would  use,  such  as  is  required  by  the  exigency 
of  the  case,  and  such  as  is  necessary  to  guard  against  probable  dan- 
ger. A  man  who  should  have  occasion  to  discharge  a  gun,  on  an 
open  and  extensive  marsh,  or  in  a  forest,  would  be  required  to  use 
less  circumspection  and  care  than  if  he  were  to  do  the  same  thing  in 
an  inhabited  town,  village,  or  city.  To  make  an  accident,  or  casu- 
alty, or,  as  the  law  sometimes  states  it,  inevitable  accident,  it  must  be 
such  an  accident  as  the  defendant  could  not  have  avoided  by  tne  use 
of  the  kind  and  degree  of  care  necessary  to  the  exigency,  and  in  the 
circumstances  in  which  he  was  placed. 

We  can  have  no  doubt  that  the  act  of  the  defendant  in  attempting 
to  part  the  fighting  dogs,  one  of  which  was  his  own,  and  for  the 
injurious  acts  of  which  he  might  be  responsible,  was  a  lawful  and 
proper  act,  which  he  might  do  by  proper  and  safe  means.  If,  then, 
in  doing  this  act,  using  due  care  and  all  proper  precautions  necessary 
to  the  exigency  of  the  case  to  avoid  hurt  to  others,  in  raising  his 
stick  for  that  purpose,  he  accidentally  hit  the  plaintiff  in  his  eye,  and 
wounded  him,  this  was  the  result  of  pure  accident,  or  was  involun- 
tary and  unavoidable,  and  therefore  the  action  would  not  lie. 

New  trial  ordered. 

(Other  important  cases  holding  that  there  Is  no  liability  in  tort  for  purely 
accidental  injuries  are  Stanley  v.  Powell  [1891]  1  Q.  B.  86;  Brown  v.  Collins, 
53  N.  H.  442,  16  Am.  Rep.  372;  Cleveland  v.  N.  J.  Steamboat  Co.,  125  N.  Y. 
299,  26  N.  E.  327;  Hollenbeck  v.  Johnson,  79  Hun,  499,  29  N.  T.  Supp.  945; 
Morris  v.  Platt,  32  Conn.  75 ;  Ford  v.  Whiteman,  2  Pennewill  (Del.)  355,  45  Atl. 
543 ;  Nitro-Glycerine  Case,  15  Wall.  524,  21  L.  Ed.  206 ;  Brown  v.  Boom  Co.,  109 
Pa.  57,  1  Atl.  156,  58  Am.  Rep.  708;  Wall  v.  Lit,  195  Pa.  375,  46  Atl.  4;  Lan- 
sing v.  Stone,  37  Barb.  15;  Washington,  C.  &  A.  Turnpike  r.  Case,  80  Md. 
36,  30  AtL  571.) 


(Hill  &  D.  Supp.  193.) 

HARVEY  v.  DUNLOP. 

(Supreme  Court  of  New  York.     1843.) 

1.  INEVITABLE  ACCIDENT. 

There  is  no  liability  at  law  for  an  injury  arising  from  Inevitable  acci- 
dent, or  for  an  act  which  ordinary  human  care  and  foresight  are  unable 
to  guard  against 


GENERAL   PRINCIPLES. 


131 


2.  SAME— PERSONAL  INJURIES. 

Accordingly,  in  an  action  for  throwing  a  stone  at  the  plaintiff's  daugh- 
ter and  putting  out  her  eye,  where  it  did  not  appear  that  the  injury  was 
Inflicted  by  design  or  carelessness,  but,  on  the  contrary,  that  it  was  purely 
accidental,  held,  that  the  plaintiff  could  not  recover. 

Action  of  trespass  against  defendant,  a  boy  of  six  years,  for  throw- 
ing a  stone  at  plaintiff's  daughter  (Clementine),  who  was  about  five 
years  of  age,  and  putting  out  her  eye.  Defendant  admitted  throwing 
the  stone,  but  it  did  not  appear  whether  this  was  done  through  accident 
or  design.  Verdict  for  defendant,  and  plaintiff  moved  for  a  new  trial. 
Denied. 

NELSON,  C.  J.  I  am  of  opinion  that  the  grounds  upon  which 
the  learned  judge  placed  the  case  before  the  jury  were  correct.  No- 
case  or  principle  can  be  found,  or  if  found  can  be  maintained,  subject- 
ing an  individual  to  liability  for  an  act  done  without  fault  on  his  part, 
and  this  was  substantially  the  doctrine  of  the  charge.  All  the  cases 
concede  that  an  injury  arising  from  inevitable  accident,  or,  which  in 
law  or  reason  is  the  same  thing,  from  an  act  that  ordinary  human 
care  and  foresight  are  unable  to  guard  against,  is  but  the  misfortune 
of  the  sufferer,  and  lays  no  foundation  for  legal  responsibility.  Thus 
it  is  laid  down  that  "if  one  man  has  received  a  corporal  injury  from 
the  voluntary  act  of  another  an  action  of  trespass  lies,  provided  there 
was  a  neglect  or  want  of  due  caution  in  the  person  who  did  the  in- 
jury, although  there  was  no  design  to  injure."  Bac.  Abr.  tit.  "Tres- 
pass," D.  But  if  not  imputable  to  the  neglect  of  the  party  by  whom 
it  was  done,  or  to  his  want  of  caution,  an  action  of  trespass  does  not 
lie,  although  the  consequences  of  a  voluntary  act.  Weaver  v.  Ward, 
Hob.  134;  Gibbons  v.  Pepper,  4  Mod.  405.  It  was  said  by  Dallas,  C. 
J.,  in  Wakeman  v.  Robinson,  I  Bingh.  213,  "if  the  accident  happened 
entirely  without  default  on  the  part  of  the  defendant,  or  blame  im- 
putable to  him,  the  action  does  not  lie";  and  the  same  principle  is 
recognized  in  Bullock  v.  Babcock,  3  Wend.  391. 

But  it  is  said  that,  inasmuch  as  the  defendant  admitted  the  injury 
to  have  been  inflicted  by  him,  it  should  be  presumed  to  have  been 
done  wrongfully  or  carelessly,  and  that  the  onus  lay  upon  him  to 
show  the  contrary.  This  is  undoubtedly  a  sound  general  principle, 
and  the  plaintiff  is  entitled  to  the  full  benefit  of  it ;  but  it  was  for  the 
jury  to  determine,  upon  the  facts  and  circumstances  before  them, 
whether  or  not  the  defendant  was  in  the  wrong.  In  order  to  arrive 
at  a  decision  upon  this  question,  the  jury  had  a  right  to  take  into  con- 
sideration the  childhood  of  the  parties,  the  friendly  relations  existing 
between  them,  the  conduct  of  both  on  their  return  home,  but  more 
especially  the  repeated  admissions  of  the  plaintiff  that  the  defendant 
was  not  to  blame.  The  latter  fact  was  very  material,  and  must  and 
should  have  produced  a  strong  impression  upon  the  minds  of  the 


132  I'AW   OF  TORTS. 

jury  in  the  absence  of  the  testimony  of  Clementine,  because  the  nat- 
ural inference  to  be  drawn  from  the  declarations  was  that  the  plaintiff 
had  received  the  information  upon  which  they  were  based  from  his 
daughter's  account  of  the  transaction,  and  had  frankly  disclosed  it 
though  the  admissions  operated  against  his  own  interest.  These  ad- 
missions, taken  in  connection  with  the  other  facts  and  circumstances 
in  the  case,  were  undoubtedly  decisive  of  the  true  character  of  the 
transaction,  and  they  conduct  us  satisfactorily  to  the  same  conclusion 
arrived  at  by  the  jury,  that  the  misfortune  happened  without  fault  on 
either  side,  and  that  it  was  one  of  those  unhappy  accidents  to  which 
children  of  the  tender  age  of  these  parties  are  not  infrequently  ex- 
posed in  their  little  innocent  plays  and  amusements — a  result  rather 
to  be  deplored  than  punished. 
New  trial  denied. 


An  action  upon  tort  lies  for  the  breach  of  a  right  or  duty 
created  by  law,  even  though  the  performance  of  such 
right  or  duty  may  have  been  assumed  by  contract. 
In  such  cases  the  plaintiff  may  either  sue  ex  contractu 
or  ex  delicto. 

(61  Md.  619,  48  Am.  Rep.  134.) 

BALTIMORE  CITY  PASS.  RY.  CO.  v.  KEMP  et  ux. 
(Court  of  Appeals  of  Maryland.     July  3,  1884.) 

1.  NEGLIGENCE— REMOTE  CONSEQUENCES — QUESTION  FOB  JURY. 

By  the  alleged  negligence  of  a  railway  company,  a  woman,  previously 
in  good  health,  was  injured,  while  a  passenger  on  its  railway,  by  a  blow 
upon  the  breast,  which  thereafter  continued  to  be  sore,  until,  within  two 
or  three  weeks,  a  cancer  appeared  there.  There  was  evidence  that  such 
a  blow  might  be  sufficient  to  cause  the  development  of  cancer,  although 
the  origin  of  a  cancer,  in  any  particular  case,  cannot  be  certainly  known. 
Held,  that  the  question  whether  the  cancer  was  the  result  of  the  injury 
was  one  for  the  jury,  upon  the  facts. 

2.  SAME— BREACH  OF  DUTY  ARISING  FROM  CONTRACT— ELECTION  OF  REMEDY. 

A  common  carrier  of  passengers  owes,  to  a  person  accepted  to  be  car- 
ried, a  duty  to  be  careful,  irrespective  of  contract,  the  violation  of  which 
duty  is  a  tort,  giving  a  right  of  action;  and  while  a  passenger  may  sue 
for  a  breach  of  contract,  where  there  is  one,  he  may,  at  his  election,  pro- 
ceed as  for  a  tort,  where  personal  injury  has  been  suffered  by  the  negli- 
gence or  wrongful  act  of  the  carrier  or  his  agents. 

Motion  for  reargument  of  appeal  from  circuit  court,  Howard  coun- 
ty. See  61  Md.  74. 

Action  by  Charles  E.  Kemp  and  Adaline  Kemp,  his  wife,  against 
the  Baltimore  City  Passenger  Railway  Company,  for  personal  inju- 


GENERAL  PRINCIPLES.  133 

ries  to  the  wife,  alleged  to  have  been  caused  by  the  negligence  of  de- 
fendant. Evidence  tending  to  show  that  a  cancer,  from  which  the 
wife  suffered,  was  the  result  of  the  injury,  was  given  at  the  trial,  and 
its  substance  was  stated,  in  the  opinion  of  the  court  on  the  hearing 
of  the  appeal,  as  follows :  "The  evidence  shows,  clearly  and  without 
contradiction,  that  Mrs.  Kemp  was,  at  the  time  of  the  accident,  and 
for  many  years  prior  thereto,  apparently  in  good  health  and  condi- 
tion. The  accident  occurred  about  the  middle  of  May,  1880,  and  a 
very  short  time  thereafter  the  cancer  commenced  its  development  on 
the  injured  part  of  her  person.  In  her  testimony,  after  describing 
the  manner  in  which  the  accident  occurred,  and  how  she  was  thrown 
against  the  railing  on  the  platform  of  the  car,  as  she  was  about  get- 
ting off,  and  the  hurting  of  her  right  arm  and  left  breast,  she'states 
that  the  right  arm  was  bruised  and  discolored ;  and  where  the  breast 
was  struck  it  was  sore,  and  remained  so  from  that  time  out.  Prior 
to  that  time  she  had  no  pain  or  soreness;  and  two  or  three  weeks 
afterwards  a  small  lump  appeared  in  the  left  breast,  which,  upon  be- 
ing shown  to  her  physicians,  was  pronounced  to  be  a  cancer.  Dr. 
Smith  first  operated  for  its  removal  on  the  8th  of  November,  1880, 
when  it  was  about  the  size  of  an  orange,  and  he  operated  again  about 
the  I2th  of  January,  1881,  when  the  entire  breast  was  removed,  but 
without  success  in  extirpating  the  roots  of  the  disease.  The  cancer 
still  remains,  and  is  pronounced  to  be  incurable.  The  two  daughters 
of  Mrs.  Kemp,  in  their  testimony,  fully  corroborate  the  statement  of 
their  mother  in  regard  to  her  previous  good  health,  and  apparent 
freedom  from  disease,  and  the  subsequent  appearance  and  growth  of 
the  cancer.  And  the  professional  witnesses,  while  they  all  testify  that 
it  is  impossible  to  know  and  be  certain  as  to  the  origin  of  cancer  in 
any  given  case,  yet  they  all  agree  in  saying  that  the  blow,  such  as  that 
described  by  Mrs.  Kemp,  was  sufficient  and  may  have  been  the  cause 
of  the  development  of  cancer  in  her  case.  In  the  opinion  of  two  of 
the  physicians,  Dr.  Latimer  and  Dr.  Turner,  the  blow  on  the  breast, 
as  described  by  Mrs.  Kemp,  was  not  only  sufficient  cause  for  the  pro- 
duction of  the  cancer,  but  they  would  attribute  the  cancer  to  that 
cause ;  and,  from  the  coincidences  of  the  case,  we  must  say  that  their 
opinion  does  not  appear  to  be  unreasonable." 

Defendant  offered  prayer  for  instructions  to  the  jury,  one  of  which 
was  as  follows :  "That  there  is  no  legally  sufficient  evidence  that  the 
cancer,  testified  to  by  the  witnesses  in  this  case,  was  caused  by  the 
negligence  of  the  defendant  or  its  servants,  and  therefore  the  jury 
cannot  take  the  same  into  consideration  in  estimating  the  damage 
done  to  the  plaintiff,  Mrs.  Kemp,  by  the  negligence  of  the  defendant  or 
its  servants,  even  if  they  shall  find  that  there  was  such  negligence." 
This  the  court  rejected,  and  granted  the  plaintiff's  prayer  for  instruc- 
tions, and  defendant  excepted.  The  jury  found  a  verdict  for  plaintiff 
for  $10,000,  and  judgment  for  plaintiff  was  entered  thereon.  De- 


134  LAW  OF  TORTS. 

fendant  appealed  from  the  judgment.  On  the  hearing  of  the  appeal, 
the  court  rendered  an  opinion  affirming  the  judgment.  Thereafter 
defendant  moved  for  a  reargument  of  the  appeal. 

ALVEY,  C.  J.  There  has  been  a  motion  made  in  this  case  for  re- 
argument,  based  largely  upon  authorities  that  were  not  brought  to 
the  attention  of  the  court  on  the  former  hearing,  and  hence  we  depart 
from  the  general  practice  of  disposing  of  such  motions  without  the 
formal  assignment  of  reasons  for  the  action  of  the  court  thereon. 

Upon  the  question  whether  the  jury  should  have  been  allowed  to 
infer,  upon  the  evidence  before  them,  that  cancer  was  the  result  of 
the  injury  received  by  the  plaintiff,  the  defendant  cites  and  relies  upon 
the  case  of  Jewell  v.  Railway  Co.,  55  N.  H.  84,  a  case  not  referred  to 
on  the  former  argument.  But  the  facts  of  that  case  are  so  entirely 
different  from  those  of  the  case  before  us  that  the  analogy  between 
the  two  cases  is  but  slight.  In  the  first  place,  the  party  whose  negli- 
gence caused  the  injury  in  that  case  was  not,  according  to  the  deci- 
sion of  the  court,  the  servant  or  employee  of  the  defendant,  and  there- 
fore the  defendant  was  not  liable  for  his  acts.  In  the  second  place, 
there  was  a  considerable  length  of  time  intervening  between  the  time 
of  the  accident  and  the  death  of  the  party,  the  latter  in  the  meantime 
being  engaged  in  hard  work,  and  subjected  to  much  exposure,  and 
all  the  circumstances  of  the  case  rendered  it  exceedingly  doubtful 
whether  there  could  be  any  connection  between  the  injury  received 
by  a  blow  on  the  right  shoulder,  and  a  cancer  that  was  found  to  ex- 
ist, by  a  post  mortem  examination,  in  the  left  lung  of  the  party,  a 
year  and  a  half  after  the  injury  received.  And  the  physicians  all  tes- 
tified that,  in  their  opinion,  neither  the  last  sickness  of  the  party  nor 
the  cancer  was  in  any  way  attributable  to  the  injury  previously  re- 
ceived. The  court,  moreover,  considered  and  determined  the  case 
upon  the  weight  of  evidence,  as  upon  motion  for  a  new  trial,  and  not 
as  upon  a  demurrer  to  the  legal  sufficiency  of  the  evidence  to  be  sub- 
mitted to  the  jury,  as  in  the  case  before  us.  The  other  cases  cited 
upon  this  question  have  only  a  remote  or  indirect  bearing,  and  we  do 
not  perceive  that  they  are  at  all  in  conflict  with  the  opinion  that  has 
been  delivered  in  this  case. 

Since  the  opinion  in  this  case  was  delivered,  50  Mich,  has  been 
published,  and  that  volume  contains  the  case  of  Beauchamp  v.  Min- 
ing Co.,  at  page  163,  15  N,  W.  65,  45  Am.  Rep.  30.  In  that  case  a 
boy,  while  passing  on  a  highway,  was  injured  by  being  struck  on  the 
side  of  his  head  by  a  stone  from  a  blast  fired  by  the  mining  company, 
and,  having  died  some  five  or  six  months  thereafter,  an  action  was 
brought  to  recover  damages  for  his  death,  caused,  as  it  was  alleged, 
by  the  negligence  of  the  defendant.  Among  other  defenses,  it  was 
alleged,  and  evidence  was  given  to  show,  that  death  was  not  caused 
by  the  injury,  but  by  specific  or  typical  pneumonia ;  and  the  case  was 


GENERAL  PRINCIPLES.  135 

sought  to  be  taken  from  the  jury  upon  the  ground  that  pneumonia, 
and  not  the  injury  received  from  the  stone,  was  the  direct  and  proxi- 
mate cause  of  the  death.  The  physician  who  attended  the  boy  in  his 
sickness  testified  that  he  died  of  pneumonia,  though  he  had  been  very 
seriously  injured,  and  was  paralyzed  on  one  side,  and  the  chances  of 
recovery  were  against  him.  The  doctor  said  in  his  testimony:  "I 
am  unprepared  to  say  what  caused  pneumonia  in  this  case.  In  my 
opinion,  it  was  a  specific  or  typical  pneumonia ;  the  relation  between 
it  and  the  injured  head  was  not  close."  It  was  contended,  however, 
for  the  plaintiff,  that,  owing  to  the  broken  and  shattered  condition  of 
the  boy's  system,  caused  by  the  injury  received,  and  his  increased 
susceptibility  to  cold,  pneumonia  was  superinduced  and  developed  as 
a  natural  result  of  the  injury;  and  that  question  was  submitted  to  the 
jury  upon  the  evidence,  and  they  found  for  the  plaintiff.  The  case 
was  taken  to  the  supreme  court  of  Michigan,  and  the  error  assigned 
was  the  submission  of  the  question  to  and  allowing  the  jury  to  con- 
clude as  to  whether  pneumonia  did  in  fact  result  from  and  was  a  con- 
sequence of  the  injury  received  by  the  boy.  The  supreme  court  af- 
firmed the  ruling  of  the  court  below,  and  held  that,  "if  the  injury  re- 
ceived and  sickness  following  concurred  in  and  contributed  to  the  at- 
tack of  pneumonia,  the  defendant  must  be  held  responsible  therefor." 
And  so  in  this  case :  If  the  injury  received  by  Mrs.  Kemp,  by  the 
negligence  of  the  defendant,  superinduced  and  contributed  to  the 
production  or  development  of  cancer,  the  defendant  is  responsible 
therefor ;  and  the  cancer  is  not  to  be  treated  as  an  independent  cause 
of  injury  or  suffering,  any  more  than  pneumonia,  resulting  from  an 
injury  that  rendered  the  system  susceptible  of  and  liable  to  the  at- 
tack, as  a  natural  consequence  of  such  injury,  is  to  be  regarded  as  an 
independent  cause  of  death.  In  both  cases  the  original  injury  was 
the  prime  cause  that  opened  the  way  to  and  set  other  causes  in  mo- 
tion, which  led  to  the  fatal  results.  And  the  wrong-doer  cannot  be 
allowed  to  apportion  the  measure  of  his  responsibility  to  the  initial 
cause.  Whether  the  direct  causal  connections  exist  is  a  question,  in 
all  cases,  for  the  jury,  upon  the  facts  in  proof. 

There  is  another  ground  upon  which  reargument  of  the  case  is 
asked,  and  that  is  with  respect  to  the  nature  of  the  action,  and  for 
what  nature  and  extent  of  injury  damages  may  be  allowed  to  be  re- 
covered therein.  The  defendant  insists  that,  while  the  form  of  action 
is  as  for  a  tort,  yet  the  real  ground  of  the  right  to  recover  in  this  case 
is  simply  for  breach  of  the  contract  to  carry  safely,  and  to  put  the 
party  down  safely.  And  that  being  so,  according  to  the  contention, 
it  is  insisted  that,  to  entitle  the  plaintiff  to  damages  by  reason  of  a 
breach  of  the  contract,  the  injury  for  which  compensation  is  asked 
should  be  shown  to  be  such  that  it  may  fairly  be  taken  to  have  been 
contemplated  by  the  parties  as  the  possible  result  of  the  breach  of 
the  contract ;  and  that,  in  this  case,  no  such  consequence  as  the  »?ro- 


136  LAW  OF  TORTS. 

duction  of  cancer  in  the  plaintiff  could  have  been  anticipated  as  the 
probable  result  of  the  negligent  act  of  the  defendant.  But  to  this 
proposition  we  cannot  agree,  and,  in  our  opinion,  it  is  not  supported 
by  authority. 

A  common  carrier  of  passengers,  who  accepts  a  party  to  be  car- 
ried, owes  to  that  party  a  duty  to  be  careful,  irrespective  of  contract ; 
and  the  gravamen  of  an  action  like  the  present  is  the  negligence  of 
the  defendant.  The  right  to  maintain  the  action  does  not  depend 
upon  contract,  but  the  action  is  founded  upon  the  common-law  duty 
to  carry  safely ;  and  the  negligent  violation  of  that  duty,  to  the  dam- 
age of  the  plaintiff,  is  a  tort  or  wrong  which  gives  rise  to  the  right 
of  action.  Bretherton  v.  Wood,  3  Brod.  &  B.  54.  If  this  were  not 
so,  the  passenger  would  occupy  a  more  unfavorable  position  in  refer- 
ence to  the  extent  of  his  right  to  recover  for  injuries  than  a  stranger; 
for  the  latter,  for  any  negligent  injury  or  wrong  committed,  can  only 
sue  as  for  a  tort,  and  the  measure  of  the  recovery  is  not  only  for  the 
actual  suffering  endured,  but  for  all  aggravation  that  may  attend  the 
commission  of  the  wrong;  whereas,  in  the  case  of  a  passenger,  if  the 
contention  of  the  defendant  be  supported,  for  the  same  character  of 
injury,  the  right  of  recovery  would  be  more  restricted.  The  principle 
of  these  actions  against  common  carriers  of  passengers  is  well  illus- 
trated by  the  case  of  a  servant  whose  fare  had  been  paid  by  the  mas- 
ter, or  the  case  of  a  child  for  whom  no  fare  is  charged.  In  both  of 
the  cases  mentioned,  though  there  is  no  contract  as  between  the  car- 
rier and  the  servant,  or  as  between  the  carrier  and  the  child,  yet  both 
servant  and  the  child  are  passengers,  and  for  any  personal  injuries 
suffered  by  them,  through  the  negligence  of  the  carrier,  it  is  clear 
they  could  sue  and  recover;  but  they  could  only  sue  as  for  a  tort. 
The  authorities  would  seem  to  be  clear  upon  the  subject,  and  leave 
no  room  for  doubt  or  question. 

In  the  case  of  Marshall  v.  Railroad  Co.,  II  C.  B.  655,  in  discussing 
the  ground  of  action  against  a  common  carrier,  Jervis,  C.  J.,  said: 
"But  upon  what  principle  does  the  action  lie  at  the  suit  of  the  servant 
for  his  personal  suffering?  Not  by  reason  of  any  contract  between 
him  and  the  company,  but  by  reason  of  a  duty  implied  by  law  to  carry 
him  safely."  And  in  the  same  case  Mr.  Justice  Williams  said: 
"The  case  was,  I  think,  put  upon  the  right  footing  by  Mr.  Hill,  when 
he  said  that  the  question  turned  upon  the  inquiry  whether  it  was  nec- 
essary to  show  a  contract  between  the  plaintiff  and  the  railroad  com- 
pany. His  proposition  was  that  this  declaration  could  only  be  sus- 
tained by  proof  of  a  contract  to  carry  the  plaintiff  and  his  luggage  for 
hire  and  reward  to  be  paid  by  the  plaintiff,  and  that  the  traverse  of 
that  part  of  the  declaration  involves  a  traverse  of  the  payment  by 
the  plaintiff.  I  am  of  opinion  that  there  is  no  foundation  for  that 
proposition.  It  seems  to  me  that  the  whole  current  of  authorities, 
beginning  with  Govett  v.  Radnidge,  3  East,  62,  and  ending  with  Pozzi 


GENERAL  PRINCIPLES.  137 

v.  Shipton,  8  Adol.  &  E.  963,  establishes  that  an  action  of  this  sort  is, 
in  substance,  not  an  action  of  contract,  but  an  action  of  tort  against 
the  company  as  carrier."  And  in  the  subsequent  case  of  Austin  v. 
Railway  Co.,  L.  R.  2  Q.  B.  442,  Mr.  Justice  Blackburn,  now  Lord 
Blackburn,  in  delivering  his  judgment  in  that  case,  said:  "I  think 
that  what  was  said  in  the  case  of  Marshall  v.  Railroad  Co.,  II  C.  B. 
655,  was  quite  correct.  It  was  there  laid  down  that  the  right  which 
a  passenger  by  railway  has  to  be  carried  safely  does  not  depend  on 
his  having  made  a  contract,  but  that  the  fact  of  his  being  a  passenger 
casts  a  duty  on  the  company  to  carry  him  safely."  And  to  the  same 
effect,  and  with  full  approval  of  the  authorities  just  cited,  are  the 
cases  of  Foulkes  v.  Railway  Co.,  4  C.  P.  Div.  267,  and  the  same  case 
on  appeal,  5  C.  P.  Div.  157,  and  Fleming  v.  Railway  Co.,  4  Q.  B.  Div. 
81.  The  case  of  Bretherton  v.  Wood,  3  Brod.  &  B.  54,  is  a  direct 
authority  upon  the  question. 

A  passenger  may,  without  doubt,  declare  for  a  breach  of  contract, 
where  there  is  one ;  but  it  is  at  his  election  to  proceed  as  for  a  tort, 
where  there  has  been  personal  injury  suffered  by  the  negligence  or 
wrongful  act  of  the  carrier,  or  the  agents  of  the  company;  and,  in 
such  action,  the  plaintiff  is  entitled  to  recover  according  to  the  princi- 
ples pertaining  to  that  class  of  actions,  as  distinguished  from  actions 
on  contract.  And  this  is  the  settled  doctrine  and  practice  in  this 
state.  Stockton  v.  Frey,  4  Gill,  406,  45  Am.  Dec.  138;  Railroad  Co. 
v.  Blocher,  27  Md.  277,  287 ;  Turnpike  Road  v.  Boone,  45  Md.  344 ; 
Stokes  v.  Saltonstall,  13  Pet.  181,  10  L.  Ed.  115.  The  motion  for  re- 
argument  must  be  overruled. 

(Both  the  propositions  laid  down  in  this  case  are  well  supported  by  author- 
ity. Thus,  I.  If  a  personal  injury  to  plaintiff  by  defendant  directly  causes 
a  diseased  condition,  as,  e.  g.,  cancer,  or  rheumatism,  or  hernia,  or  ulcers,  or 
congestion,  etc.,  and  from  this  directly  results  another  disease,  naturally  su- 
pervening, as  pneumonia,  or  pleurisy,  or  paralysis,  etc.,  or  if  death  is  a  natu- 
ral result  of  the  original  or  supervening  disease,  the  defendant  is  liable  for 
these  consequences;  and  that,  too,  though  the  plaintiff  was  of  delicate  health 
or  constitution,  or  infirm,  or  had  a  predisposition  to  the  disease  which  resulted 
from  the  injury;  as,  however,  the  causes  of  disease  are  often  obscure  or  diffi- 
•  cult  to  trace,  the  question  whether  the  injury  was  the  cause  of  the  disease  or 
death  is  ordinarily,  as  in  the  principal  case,  considered  one  for  the  jury.  Crane 
Elevator  Co.  v.  Lippert,  63  Fed.  942,  11  C.  C.  A.  521;  Bishop  v.  St.  Paul  R. 
Co.,  48  Minn.  26,  50  N.  W.  927;  Terre  Haute  &  I.  R.  Co.  v.  Buck,  90  Ind.  346, 
49  Am.  Rep.  168;  Louisville,  N.  A.  &  C.  R.  Co.  v.  Falvey,  104  Ind.  409,  3  N. 
E.  389,  4  N.  E.  908;  Brashear  v.  Traction  Co.,  180  Pa.  392,  36  Atl.  914;  Tice 
v.  Munn,  94  N.  Y.  621;  Lyons  v.  Second  Ave.  R.  Co.,  89  Hun,  374,  35  N.  Y. 
Supp.  372,  affirmed  152  N.  Y.  654,  47  N.  E.  1109;  McNaruara  v.  Clinton ville, 
62  Wis.  207,  22  N.  W.  472,  51  Am.  Rep.  722;  Freeman  v.  Mercantile  Mut  Ace. 
Ass'n,  156  Mass.  351,  30  N.  E.  1013,  17  L.  R.  A.  753.  So  if  the  person  injured 
employs  a  competent  physician  or  surgeon,  who,  however,  treats  the  case  un- 
skillfully,  whereby  increased  suffering,  or  even  death,  results,  the  party  caus- 
ing the  injury  is  responsible  for  these  effects.  Sauter  v.  N.  Y.  C.  &  H.  R.  Co., 
66  N.  Y.  50,  23  Am.  Rep.  18;  Tuttle  v.  Farmington,  58  N.  H.  13;  Stover  v. 
Bluehill,  51  Me.  439;  Loeser  v.  Humphrey,  41  Ohio  St  378,  52  Am.  Rep.  86; 


138  LAW  OF  TORTS. 

Pullman  Car  Co.  v.  Bluhm,  109  111.  20,  50  Am.  Rep.  601;  Nagel  v.  Mo.  Pac.  R. 
Co.,  75  Mo.  653,  42  Am.  Rep.  418.  But  where  a  passenger  was  injured  by  a 
collision  between  railroad  trains,  and  in  consequence  became  insane,  and  eight 
months  afterwards  committed  suicide,  it  was  held  that  not  the  injury,  but 
his  own  act,  was  the  proximate  cause  of  his  death.  Scheffer  v.  Railroad  Co., 
105  U.  S.  249,  26  L.  Ed.  1070;  cf.  Washington  &  G.  R.  Co.  v.  Hickey,  166  U.  S. 
521,  17  Sup.  Ct  661,  41  L.  Ed.  1101;  Seifter  v.  Brooklyn  Heights  R.  Co.,  169 
N.  Y.  254,  62  N.  E.  349 ;  Sullivan  v.  Tioga  R.  Co.,  112  N.  Y.  643,  20  N.  E.  569, 
8  Am.  St.  Rep.  793. 

II.  Though,  in  general,  a  liability  arising  in  contract  must  be  enforced 
by  an  action  ex  conlractu,  and  a  liability  arising  in  tort  by  an  action 
ex  delicto,  yet  there  is  an  intermediate  class  of  cases  in  which  there 
may  be  a  choice  between  these  forms  of  remedy.  Thus  a  certain  relation 
between  parties  may  be  created  by  contract,  as,  e.  g.,  of  carrier  and  passenger, 
of  attorney  and  client,  of  physician  and  patient,  of  master  and  servant,  etc.; 
and  then,  as  the  law  prescribes,  upon  the  creation  of  such  a  relation,  what 
the  respective  duties  of  the  parties  are,  an  action  ex  delicto  is  maintainable 
if  any  such  duty  be  violated,  since,  in  reality,  the  duty  is  created  by  the  law, 
and  not  by  the  contract.  The  contract  furnishes  the  occasion  upon  which  the 
duty  becomes  operative,  but  does  not  really  create  the  obligation.  But,  on  the 
other  hand,  as  the  contract  is  made  in  contemplation  of  the  legal  duty,  and 
with  a  view  to  its  performance,  an  action  ex  contractu  is,  from  this  point  of 
view,  maintainable.  These  rules  have  been  often  applied  to  the  relation  of 
carrier  and  passenger  [Atlantic  &  P.  R.  Co.  v.  Laird,  164  U.  S.  395,  17  Sup.  Ct. 
120,  41  L.  Ed.  485;  Pouilin  v.  Canadian  Pac.  R.  Co.  (C.  C.)  47  Fed.  858;  Car- 
roll v.  Staten  Island  R.  Co.,  58  N.  Y.  126,  17  Am.  Rep.  221;  Delaware,  L.  & 
W.  R.  Co.  v.  Trautwein,  52  N.  J.  Law,  169,  19  Atl.  178,  7  L.  R.  A.  435,  19  Am. 
St.  Rep.  442;  Ames  v.  Union  Railway,  117  Mass.  541,  19  Am.  Rep.  426;  Taylor 
v.  Manchester,  etc.,  R.  Co.  (1895)  1  Q.  B.  134];  of  carrier  and  shipper  of  goods 
[Merritt  v.  Earle,  29  N.  Y.  115,  86  Am.  Dec.  292;  Bait  &  O.  R.  Co.  v.  Pum- 
phrey,  59  Md.  390] ;  of  physician  and  patient,  skilled  workmen  and  their  em- 
ployers, etc.  [Kuhn  v.  Brownfleld,  34  W.  Va.  252,  12  S.  E.  519,  11  L.  R.  A.  700; 
Pike  v.  Honsinger,  155  N.  Y.  201,  49  N.  E.  760,  63  Am.  St  Rep.  655].  That  it 
is  the  law  in  such  cases,  and  not  the  contract,  that  really  creates  the  duty,  is 
shown  by  the  fact  that  when  the  service  is  rendered  gratuitously,  as,  e.  g., 
when  a  passenger  is  carried  without  payment  of  fare,  the  liability  attaches, 
if  the  duty  be  violated  [Carroll  v.  Staten  Island  R.  Co.,  supra;  Phila.  &  R.  R. 
Co.  v.  Derby,  14  How.  468,  14  L.  Ed.  502;  Littlejohn  v.  Railroad  Co.,  148  Mass. 
478,  20  N.  E.  103,  2  L.  R.  A.  502;  Nugent  v.  Boston,  C.  &  M.  R.  Co.,  80  Me.  62, 
73,  12  Atl.  797,  6  Am.  St  Rep.  151] ;  and  so  when  lawyers  or  physicians  render 
their  services  gratuitously.  Wharton  on  Negligence  (2d  Ed.)  §  437. 

The  distinction  is  said  to  be  this :  "If  the  cause  of  complaint  be  for  an  act 
of  omission  or  nonfeasance  which,  without  proof  of  a  contract  to  do  what  has 
been  left  undone,  would  not  give  rise  to  any  cause  of  action  (because  no  duty 
apart  from  contract  to  do  what  is  complained  of  exists),  then  the  action  is 
founded  upon  contract  and  not  upon  tort  If,  on  the  other  hand,  the  relation 
of  the  plaintiff  and  the  defendant  be  such  that  a  duty  arises  from  that  rela- 
tionship, irrespective  of  contract,  to  take  due  care,  and  the  defendant  is  neg- 
ligent then  the  action  is  one  of  tort."  Kelly  v.  Metrop.  R.  Co.  [1895]  1  Q.  B. 
944,  946;  Atlantic  &  P.  R.  Co.  v.  Laird,  164  U.  S.  393,  399,  17  Sup.  Ct  120,  41 
L.  Ed.  485;  cf.  Nevin  v.  Pullman  Car  Co.,  106  111.  222,  46  Am.  Rep.  688.) 


GENERAL  PRINCIPLES.  139 

In  some  cases  a  plaintiff,  instead  of  suing  ex  delicto  for  a 
tort,  may  waive  the  tort  and  sue  ex  contractu  upon  an 
implied  contract. 

(121  N.  Y.  161,  24  N.  E.  272,  8  L.  R.  A.  216,  18  Am.  St  Rep.  803.) 

TERRY  et  al.  v.  HUNGER  (in  part). 
(Court  of  Appeals  of  New  York.    April  15,  1890.) 

L  CONVERSION— WAIVER  OF  TORT — ACTION  EX  CONTRACTU. 

The  owner  of  goods  wrongfully  taken,  which  still  remain  In  the  wrong- 
doers' possession,  may  waive  the  tort,  and  sue  on  an  implied  contract  of 
sale,  in  which  event  title  to  the  goods  passes  to  the  wrong-doers. 
2.  SAME— ELECTION  OF  ACTION. 

The  bringing  of  an  ex  contractu  action  by  the  owner  against  some  of 
the  wrong-doers  is  a  final  election  to  treat  the  transaction  as  a  sale,  and 
he  cannot  subsequently  sue  the  others  for  conversion. 

Appeal  from  Supreme  Court,  General  Term,  Fifth  Department 

PECKHAM,  J.  The  plaintiffs  commenced  an  action  heretofore 
against  two  other  persons,  named,  respectively,  Kipp  and  Hunger, 
on  account  of  the  same  transaction  for  which  this  action  was  brought 
against  the  above-named  sole  defendant.  The  character  of  the  com- 
plaint in  that  action  was  before  this  court,  and  the  case  is  reported 
in  88  N.  Y.  629,  [Goodwin  v.  Griffis.]  The  defendants  in  that  case 
were  charged  with  detaching  and  carrying  away  from  the  mill  the 
machinery  in  question  in  that  case,  and  also  in  this,  and  using  it  for 
themselves.  It  was  there  held,  upon  a  perusal  of  the  complaint,  that 
the  action  was  of  a  nature  ex  contractu,  and  not  ex  delicto,  for  the 
wrong  done  plaintiffs  by  the  conversion  of  their  property.  As  the 
defendants  therein  had  not,  after  their  conversion  of  it,  themselves 
sold  or  otherwise  disposed  of  the  property  which  they  acquired  from 
the  plaintiffs,  the  fiction  of  the  receipt  by  defendants  of  money  for  the 
sale  of  the  property,  which  ex  aequo  et  bono  they  ought  to  pay  back 
to  plaintiffs,  and  which  they  therefore  impliedly  promised  to  pay 
back,  could  not  be  indulged  in,  and  the  position  of  the  parties  would 
have  been  at  one  time  the  subject  of  some  doubt,  whether  there  was 
any  foundation  for  the  doctrine  of  an  implied  promise  in  such  case, 
or  any  possibility  of  the  waiver  of  the  tort  committed  by  the  defend- 
ants in  the  conversion  of  the  property.  In  some  of  the  states  it  has 
been  denied,  and  such  denial  placed  upon  the  ground  that  the  prop- 
erty remained  in  the  hands  of  the  wrong-doer,  and  therefore,  no 
money  having  been  received  by  him  in  fact,  an  implied  promise  to 
pay  over  money  had  and  received  by  defendant  to  the  plaintiff's  use 
did  not  and  could  not  arise.  Such  was  the  case  of  Jones  v.  Hoar,  5 
Pick.  285.  But  the  great  weight  of  authority  in  this  country  is  in 


140  LAW  OF  TORTS. 

favor  of  the  right  to  waive  the  tort,  even  in  such  case.  If  the  wrong- 
doer has  not  sold  the  property,  but  still  retains  it,  the  plaintiff  has 
the  right  to  waive  the  tort,  and  proceed  upon  an  implied  contract  of 
sale  to  the  wrong-doer  himself,  and  in  such  event  he  is  not  charged 
as  for  money  had  and  received  by  him  to  the  use  of  the  plaintiff. 
The  contract  implied  is  one  to  pay  the  value  of  the  property  as  if  it 
had  been  sold  to  the  wrong-doer  by  the  owner.  If  the  transaction 
is  thus  held  by  the  plaintiff  as  a  sale,  of  course  the  title  to  the  prop- 
erty passes  to  the  wrong-doer,  when  the  plaintiff  elects  to  so  treat  it. 
See  Pom.  Rem.  (2d  Ed.)  §§  567-569;  Putnam  v.  Wise,  I  Hill,  234, 
240,  37  Am.  Dec.  309,  and  note  by  Mr.  Hill ;  Berly  v.  Taylor,  5  Hill, 
577,  584;  Norden  v.  Jones,  33  Wis.  600,  605,  14  Am.  Rep.  782;  Cum- 
mings  v.  Vorce,  3  Hill,  283 ;  Spoor  v.  Newell,  Id.  307;  Abbott  v.  Blos- 
som, 66  Barb.  353.  We  think  this  rule  should  be  regarded  as  settled 
in  this  state.  The  reasons  for  the  contrary  holding  are  as  well  stated 
as  they  can  be  in  the  case  above  cited  from  Massachusetts,  (5  Pick.,) 
and  some  of  the  cases  looking  in  that  direction  in  this  state  are  cited 
in  the  opinion  of  Talcott,  J.,  in  the  case  reported  in  66  Barb.,  supra. 
We  think  the  better  rule  is  to  permit  the  plaintiff  to  elect,  and  to  re- 
cover for  goods  sold,  even  though  the  tort-feasor  has  not  himself  dis- 
posed of  the  goods. 

There  is  no  doubt  that  the  complaint  in  the  former  case,  reported 
in  88  N.  Y.,  proceeded  upon  the  theory  of  a  sale  of  the  property  to 
the  defendants  in  that  action,  and  it  was  so  construed  by  this  court, 
and  we  have  no  inclination  to  review  the  correctness  of  that  decision. 
We  have  then,  the  fact  that  the  defendants  in  that  action  were  sued 
by  the  plaintiffs  herein,  upon  an  implied  contract  to  pay  the  value  of 
the  property  taken  by  them,  as  upon  a  sale  thereof  by  plaintiffs  to 
them.  The  plaintiffs  having  treated  the  title  to  the  property  as  hav- 
ing passed  to  the  defendants  in  that  suit  by  such  sale,  can  the  plain- 
tiffs now  maintain  an  action  against  another  person,  who  was  not  a 
party  to  that  action,  to  recover  damages  from  him  for  his  alleged 
conversion  of  the  same  property,  which  conversion  is  founded  upon 
his  participation  in  the  same  acts  which  plaintiffs  in  the  old  suit  have 
already  treated  as  constituting  a  sale  of  the  property?  We  think  not. 
The  judgment  roll  in  the  former  action  was  received  in  evidence  up- 
on the  trial  of  this  case,  against  the  objection  of  the  plaintiffs,  and 
notwithstanding  the  fact  that  the  defendant  herein  was  not  a  party  to 
such  action.  It  appears  that  all  the  facts  surrounding  the  transaction 
as  to  the  taking  of  the  property  were  known  to  the  plaintiffs  at  the 
time  when  they  commenced  their  action  on  the  implied  contract  of 
sale. 

The  plaintiffs  having,  by  their  former  action,  in  effect  sold  this  very 
property,  it  must  follow  that  at  the  time  of  the  commencement  of  this 
one  they  had  no  cause  of  action  for  a  conversion  in  existence  against 
the  defendant  herein.  The  transfer  of  the  title  did  not  depend  upon 


GENERAL,  PRINCIPLES.  141 

the  plaintiffs  recovering  satisfaction  in  such  action  for  the  purchase 
price.     It  was  their  election  to  treat  the  transaction  as  a  sale  which 
accomplished  that  result,  and  that  election  was  proved  by  the  com- 
plaint already  referred  to. 
Judgment  affirmed. 

(The  authorities  are  agreed  that  if  a  person  converting  personal  property 
disposes  of  it  for  money  or  its  equivalent,  he  may  be  sued  in  tort  for  the  con- 
version, or  in  contract  for  money  had  and  received  [Cooley1  on  Torts  (2d  Ed.) 
109;  2  Greenl.  Ev.  §  108;  Whilden  v.  Merchants'  &  Planters'  Bank,  64  Ala.  1, 
38  Am.  Rep.  1;  St.  John  v.  Antrim  Co.,  122  Mich.  68,  80  N.  W.  998];  but  in  a 
number  of  the  states  the  doctrine  established  in  New  York  by  Terry  v.  Mun- 
ger,  ant'e,  p.  139,  that  if  the  property  is  not  disposed  of,  but  retained,  an  ac- 
tion ex  contractu  will  lie,  upon  an  implied  sale,  is  still  denied  [Quimby  v. 
Lowell,  89  Me.  547,  36  Atl.  902;  Smith  v.  Smith,  43  N.  H.  536;  Saville  v.  Welch, 
58  Vt  683,  5  Atl.  491;  Glass  Co.  v.  Wolcott,  2  Allen,  227,  79  Am.  Dec.  787; 
Sandeen  v.  Kansas  City,  St.  J.  &  C.  B.  R.  Co.,  79  Mo.  278].  Many  of  the  states, 
however,  adopt  the  New  York  rule.  Moore  v.  Richardson,  68  N.  J.  Law,  305, 
53  Atl.  1032;  Lehmann  v.  Schmidt,  87  Cal.  15,  25  Pac.  161;  Challiss  v.  Wylie, 
35  Kan.  506,  11  Pac.  438;  Downs  v.  Finnegan,  58  Minn.  112,  59  N.  W.  981,  49 
Am.  St.  Rep.  488;  Walker  v.  Duncan,  68  Wis.  624,  32  N.  W.  689;  Crown  Cycle 
Co.  v.  Brown,  39  Or.  285,  64  Pac.  451,  and  cases  cited ;  cf.  Evans  v.  Miller,  58 
Miss.  120,  38  Am.  Rep.  313 ;  see  15  Am.  &  Eng.  Enc.  of  Law  [2d  Ed.]  1116.  In 
some  states  the  general  doctrine  is  pushed  farther  still,  and  an  action  on  an 
implied  contract  will  lie  where  a  trespasser  has  severed  trees  from  land  in 
possession  of  the  owner,  or  has  quarried  stone  thereon,  and  has  afterwards 
taken  the  trees  or  stone  away.  Downs  v.  Finnegan,  supra;  Phelps  v.  Church 
of  Our  Lady,  99  Fed.  683,  40  C.  C.  A.  72 ;  Id.,  115  Fed.  883,  53  C.  C.  A.  407.  If, 
however,  these  acts  of  taking  trees,  stone,  etc.,  are  sufficient  to  create  adverse 
possession  of  the  land,  so  that  a  question  of  title  is  raised,  an  action  ex  con- 
tractu will  not  lie,  for  title  to  land  cannot  be  tried  in  such  an  action.  Id. 
So,  if  a  trespass  on  land  is  committed,  the  landowner  cannot  waive  the  tres- 
pass and  sue  the  trespasser  on  contract  for  use  and  occupation  [Commonwealth 
Ins.  &  Trust  Co.  v.  Dokko,  71  Minn.  533,  74  N.  W.  891;  Lockwood  v.  Thunder 
Bay  Boom  Co.,  42  Mich.  536,  4  N.  W.  292;  Janouch  v.  Pence  (Neb.)  93  N.  W. 
217;  15  Am.  &  Eng.  Enc.  of  Law  (2d  Ed.)  1117,  1118] ;  nor,  in  general,  can  an 
action  ex  contractu  be  brought  for  a  mere  naked  trespass  on  land  without 
benefit  to  the  trespasser,  unless  a  statute  (as  sometimes  happens)  otherwise 
prescribes  [St.  John  v.  Antrim  Co.,  122  Mich.  68,  80  N.  W.  998;  Downs  v.  Fin- 
negan, supra;  Fanson  v.  Linsley,  20  Kan.  235].  As  to  choosing  between  an 
action  in  tort  for  deceit  and  an  action  in  contract,  see  Hanrahau  v.  Nat  Bldg. 
&  Loan  Ass'n,  67  N.  J.  Law,  526,  51  Atl.  480,  affirmed  68  N.  J.  Law,  730,  54 
Atl.  1124;  Hallett  v.  Gordon,  128  Mich.  364,  87  N.  W.  261;  Crown  Cycle  Co. 
v.  Brown,  39  Or.  285,  64  Pac.  451.  As  to  the  general  doctrine  of  "waiving  a 
tort,"  see  Cooper  v.  Cooper,  147  Mass.  370,  373,  17  N.  E.  892,  9  Am.  St.  Rep. 
721 ;  Bigby  v.  U.  S.,  188  U.  S.  400,  409,  23  Sup.  Ct  468,  47  L.  Ed.  519.) 


142  LAW  OF  TORTS. 

So  a  tort,  as  a  violation  of  legal  duty,  may  involve,  as  one 
of  its  elements,  a  breach  of  contract. 

(87  N.  Y.  382.) 

RICH  v.  NEW  YORK  CENT.  &  H.  R.  R.  CO.  (in  part). 
(Court  of  Appeals  of  New  York.    January  17,  1882.) 

1.  TORT  INVOLVING  BREACH  OF  CONTRACT. 

An  omission  to  perform  a  contract  obligation  may  constitute  a  tort, 
where  that  omission  is  also  an  omission  of  a  legal  duty;  and  such  legai 
duty  may  arise,  not  merely  out  of  relations  of  trust  and  confidence  inher- 
ent in  the  nature  of  the  contract  itself,  but  may  spring  from  extraneous 
circumstances,  not  constituting  elements  of  the  contract,  as  such,  although 
connected  with  it  and  dependent  upon  it.  The  duty  and  the  tort  grow  out 
of  the  entire  range  of  facts,  of  which  the  breach  of  contract  is  but  one. 

2.  SAME— FRAUD— EVIDENCE. 

The  complaint,  in  an  action  against  a  railroad  company,  alleged,  in  sub- 
stance, that  land  owned  by  plaintiff,  very  valuable,  but  heavily  mortgaged, 
had  greatly  depreciated  in  value  in  consequence  of  the  removal  of  defend- 
ant's depot  from  the  vicinity,  and  could  only  be  restored  to  something 
like  its  former  value,  and  saved  from  the  sacrifice  of  a  foreclosure  in  a 
time  of  depression,  by  the  prompt  return  of  the  depot  to  its  former  site; 
that,  to  secure  this  result,  plaintiff  surrendered  valuable  riparian  rights 
to  defendant,  upon  its  agreement  to  restore  the  depot  as  soon  as  practica- 
ble; but  that,  because  of  plaintiff's  refusal  to  consent,  without  compensa- 
tion for  damages,  to  the  closing  of  a  street,  which  would  have  greatly 
injured  his  property,  defendant,  fully  understanding  plaintiff's  situation, 
maliciously  and  willfully  broke  its  agreement,  and  delayed  a  restoration 
of  the  depot,  for  the  express  purpose  of  preventing  plaintiff  from  being 
enabled  to  ward  off  a  foreclosure,  and  instigated  a  sale  by  the  mortgagee 
under  the  foreclosure  decree,  at  which  the  property  was  bid  off  by  the 
mortgagee  for  a  comparatively  small  sum;  and  thereupon  the  street  was 
closed,  the  mortgagee  having  been  induced  to  waive  all  damages  therefor, 
and  the  depot  was  restored.  At  the  trial,  it  was  conceded  that  a  good 
cause  of  action,  sounding  in  tort,  was  stated  in  the  complaint.  Held,  that 
one  separate  and  distinct  unlawful  act  was  alleged,  being  the  unreason- 
able delay  in  restoring  the  depot  to  its  original  location,  which  was  un- 
lawful, not  inherently  or  in  itself,  but  solely  by  force  of  the  contract  with 
plaintiff;  but  that,  outside  of  and  beyond  this,  there  was  an  actual  and 
affirmative  fraud, — a  scheme  to  accomplish  a  lawful  purpose  by  unlawful 
means, — a  fraudulent  device  to  procure  a  ruinous  foreclosure  and  thus 
remove  the  plaintiff  as  an  obstacle,  and  that  this  scheme  of  oppression 
and  fraud — the  breach  of  contract  being  only  one  of  its  elements — con- 
stituted the  tort ;  and  that  it  was  error  to  exclude,  as  immaterial,  evi- 
dence offered  by  plaintiff  to  prove  the  agreement  to  restore  the  depot 
and  its  breach,  the  situation  of  the  parties  in  respect  of  their  several  prop- 
erties, the  existence  of  the  mortgage,  and  the  instigation  of  the  foreclosure 
by  defendant,  and  statements  by  defendant's  officers  as  to  their  reasons 
for  refusing  to  restore  the  depot 

Appeal  from  Supreme  Court,  General  Term,  Second  Department. 
Action  by  Josiah  Rich  against  the  New  York  Central  &  Hudson 


GENERAL  PRINCIPLES.  143 

River  Railroad  Company.  The  complaint  alleged,  in  substance,  that 
about  the  year  1850  plaintiff,  with  others  who  were  the  owners  of  cer- 
tain lands  in  the  village  of  Yonkers,  entered  into  an  agreement  with 
the  Hudson  River  Railroad  Company  to  convey  to  said  corporation 
a  site  for  its  depot,  and  fill  in  the  same,  and  lay  out  and  grade  their 
lands  so  as  to  give  convenient  communication  between  the  depot  and 
the  business  portion  of  said  village,  said  company  agreeing  to  pay 
the  actual  cost  of  filling  in  the  depot  site,  and  to  erect  and  ever  after 
maintain  its  depot  thereon;  that  said  agreement  was  carried  out,  the 
site  conveyed,  and  the  depot  erected ;  that  defendant  succeeded  to  the 
rights,  franchises,  and  obligations  of  said  Hudson  River  Railroad- 
Company,  and  plaintiff  acquired  the  titles  of  the  other  owners  of  said 
remaining  lands ;  that  there  was  a  navigable  inlet  crossed  by  said  rail- 
road, known  as  the  "Nepperhan"  or  "Saw-Mill"  river ;  that  said  Hud- 
son River  Railroad  Company,  having  no  right  to  cut  off  or  obstruct 
the  navigation  in  said  inlet,  had  constructed  and  maintained-  a  draw- 
bridge over  it ;  that  it  subsequently  procured  the  passage  of  an  act  of 
the  legislature,  authorizing  it  to  bridge  said  inlet  without  an  opening 
or  draw,  on  making  compensation  to  the  riparian  owners;  that  de- 
fendant, to  avoid  the  payment  of  such  compensation,  "resolved  to  ac- 
complish the  same  object  by  artifice  and  strategy,"  and  so  threatened 
said  riparian  owners  that,  unless  they  would  surrender  their  rights, 
and  consent  to  the  construction  of  such  bridge,  it  would  remove  its 
depot,  and,  upon  said  owners  refusing  so  to  do,  did  remove  its  depot 
to  a  point  above  a  third  of  a  mile  north ;  that  plaintiff,  a  short  time 
previous  to  the  threatened  removal,  had  borrowed,  on  his  bond  se- 
cured by  mortgage  on  his  said  lands,  the  sum  of  $35,000,  most  of 
which  was  expended  in  erecting  stores  on  his  said  lands,  directly  op- 
posite and  about  100  feet  south  of  said  depot,  and,  if  the  depot  had 
not  been  removed,  could  have  rented  said  stores  and  the  adjacent 
lots  for  $5,000  per  annum,  and  could  have  sold  other  lots  for  suffi- 
cient to  pay  off  said  mortgage,  but  that  in  consequence  of  such  re- 
moval his  premises  became  wholly  unproductive  and  unsalable;  that, 
in  order  to  have  the  depot  restored  to  its  original  site  and  to  save  his 
property  from  being  sacrificed,  he  was  induced  and  coerced  into  giv- 
ing his  consent  to  the  closing  of  said  draw-bridge,  and  an  agreement 
was  entered  into  on  March  7,  1877,  by  which  defendant,  in  considera- 
tion of  such  consent,  agreed  that  it  would,  "as  soon  as  practicable, 
and  within  a  reasonable  time,  build  and  forever  thereafter  maintain 
its  principal  passenger  depot  for  Yonkers"  upon  said  original  site ; 
that  defendant  thereupon  removed  the  drawbridge,  and  erected  a  per- 
manent bridge  over  the  inlet ;  that  it  also  erected  a  new  depot  on  the 
old  site,  and  had  the  same  ready  for  use  about  April  15,  1878,  but  ab- 
solutely refused  to  open  or  establish  its  depot  there  unless  the  com- 
mon council  of  Yonkers  would  pass  an  ordinance  declaring  and  or- 
dering the  closing  of  a  portion  of  a  street  which  crossed  its  tracks, 


144  LAW  OF  TORTS. 

so  that  it  could  build  a  fence  inclosing  said  tracks,  which  would  so 
exclude  the  plaintiff  and  others  from  the  right  and  privilege  of  cross- 
ing said  tracks  to  the  steam-boat  docks  on  the  Hudson  river;  that 
defendant  procured  the  passage  of  an  act  of  the  legislature  amending 
the  charter  of  Yonkers,  so  as  to  provide  for  the  assessment  and  pay- 
ment of  damages  claimed  by  the  owners  of  land  injuriously  affected 
by  the  closing  of  a  street;  that  the  closing  of  said  street  would  have 
damaged  plaintiff's  property  to,  at  least,  the  sum  of  $50,000,  and 
would  have  neutralized,  in  great  measure,  all  the  benefits  derived 
from  the  restoration  of  the  depot ;  that  plaintiff  and  others  sent  in  re- 
jnonstrances  to  the  common  council  against  such  discontinuance,  and 
it  refused  to  pass  an  ordinance  to  that  effect,  because  of  the  large 
amount  of  damages  the  city  would  have  to  pay ;  that,  upon  such  re- 
fusal being  made  known,  defendant's  officers  publicly  asserted  that  it 
would  never  open  said  new  depot  until  said  ordinance  was  passed, 
and  would  tear  down  the  new  depot,  or  use  it  exclusively  for  freight, 
"in  all  of  which  the  defendant  was  actuated  by  malice  and  vindictive- 
ness  towards  plaintiff,  and  a  design  to  crush,  ruin,  and  destroy  him ;" 
that  in  consequence  of  the  removal  of  the  depot,  and  the  consequent 
unproductiveness  of  plaintiff's  property,  he  was  unable  to  pay  the  in- 
terest on  said  bond  and  mortgage,  and  foreclosure  was  commenced, 
and  a  decree  of  foreclosure  and  sale  was  made,  but  that  the  mort- 
gagee had  forborne  selling  to  give  plaintiff  the  benefit  of  the  re-estab- 
lishment of  the  depot ;  that  defendant's  officers  and  agents,  after  the 
refusal  of  the  common  council  to  pass  the  said  ordinance,  called  up- 
on the  mortgagee,  and  induced  it  "to  withdraw  the  grace  and  favor" 
accorded  to  plaintiff  and  to  advertise  the  property  immediately  for 
sale,  so  as  to  cut  off  plaintiff's  claim  for  damages,  the  mortgagee 
having  been  induced  to  waive  any  such  claim;  that  the  "scheme  or 
plan  which  had  been  so  concocted  and  arranged  by  and  in  the  inter- 
est and  for  the  special  benefit  and  advantage  of  the  defendant,  to  ena- 
ble it  to  evade  and  violate  with  impunity  its  aforesaid  covenant  and 
obligation  with  the  plaintiff,  *  *  *  and  to  escape  the  payment  of 
its  fair  and  just  proportion  of  the  plaintiff's  damages  on  the  closing 
of  said  street,  was  fully  carried  out  and  executed  by  the  instigation 
and  connivance  of  the  defendant ;"  that  plaintiff's  entire  property  was 
sold  under  said  decree,  and  bid  off  by  the  mortgagee  for  $20,000,  and 
thereupon  the  ordinance  was  passed  closing  said  street,  and  defend- 
ant immediately  opened  the  new  depot;  and  that  "defendant,  by 
means  of  the  wrongs,  injuries,  and  grievances  aforesaid,  and  its  mali- 
cious and  unlawful  actions  in  doing  as  aforesaid,  has  inflicted  pe- 
cuniary loss  and  damage  upon  the  plaintiff  to  the  amount  of  $150,000;" 
for  which  sum  judgment  was  asked. 

At  the  trial  plaintiff  offered  in  evidence  the  agreement  of  1877, 
which  was  objected  to  and  excluded  as  irrelevant  and  incompetent. 
Plaintiff  also  offered  to  show  the  alleged  breach  of  that  contract,  the 


GENERAL   PRINCIPLES.  145 

value  of  the  property  conveyed  to  defendant,  and  the  establishment 
of  the  depot  originally  thereon ;  that  defendant  caused  and  procured 
the  sale  of  plaintiff's  property  under  the  foreclosure  decree  to  deprive 
him  of  his  claim  for  damages  for  closing  the  street ;  that  it  was  sold 
for  less  than  one-fifth  of  its  value ;  that  plaintiff  was  dispossessed  at 
the  instigation  of  defendant ;  and  that  if  the  depot  had  been  re-estab- 
lished the  market  value  of  the  property  would  have  been  largely  in- 
creased. Plaintiff  also  offered  to  prove  an  interview  with  defendant's 
officers  in  reference  to  the  removal  and  re-establishment  of  the  depot, 
and  the  reasons  they  assigned  for  the  removal  and  refusal  to  restore 
it,  and  also  the  amount  of  damage  sustained  by  plaintiff  in  conse- 
quence of  defendant's  omission  and  refusal  to  re-establish  the  depot 
under  the  agreement  of  1877,  all  of  which  was  objected  to  and  ex- 
cluded on  the  same  ground. 

Defendant  moved  for  a  dismissal  of  the  complaint  on  the  following 
grounds :  "First.  Because  the  plaintiff  has  not  laid  the  foundation, 
by  any  of  the  several  agreements  in  evidence,  to  sustain  a  cause  of  ac- 
tion for  damages  arising  from  any  wrongful  act  of  the  defendant  in 
respect  to  the  property  of  the  plaintiff.  Second.  Because  the  gist  of 
this  action  is  the  malicious  and  unlawful  acts  of  the  defendant  in  pur- 
suing a  scheme  or  plan  to  injure  the  plaintiff  by  depriving  him  of  his 
property,  based  upon  an  alleged  malicious  violation  of  certain  alleged 
contracts.  The  proof  offered  fails  to  make  out  any  cause  of  action 
as  set  forth  in  the  complaint,  and  would  not  sustain  any  verdict 
against  the  defendant  for  any  damages  in  this  action.  Third.  Be- 
cause the  complaint  sets  forth  but  a  single  cause  of  action,  and  the 
plaintiff  cannot  legally  found  a  claim  for  damages  upon  the  alleged 
breach  of  any  one  of  the  several  agreements  or  contracts  referred  to." 

The  motion  was  granted,  and  judgment  for  defendant  was  entered 
on  the  dismissal  of  the  complaint,  which,  on  appeal  therefrom  by 
plaintiff,  was  affirmed  by  the  general  term.  Plaintiff  appealed  from 
the  judgment  of  the  general  term. 

FINCH,  J.  We  have  been  unable  to  find  any  accurate  and  per- 
fect definition  of  a  "tort."  Between  actions  plainly  ex  contractu  and 
those  as  clearly  ex  delicto  there  exists  what  has  been  termed  a  "bor- 
derland," where  the  lines  of  distinction  are  shadowy  and  obscure,  and 
the  tort  and  the  contract  so  approach  each  other,  and  become  so 
nearly  coincident,  as  to  make  their  practical  separation  somewhat 
difficult.  Moak's  Underh.  Torts,  23.  The  text-writers  either  avoid 
a  definition  entirely,  (Addison  on  Torts ;)  or  frame  one  plainly  imper- 
fect, (2  Bouv.  Law  Diet.  600;)  or  depend  upon  one  which  they  con- 
cede to  be  inaccurate,  but  hold  sufficient  for  judicial  purposes, 
(Cooley,  Torts,  3,  note  i ;  Moak's  Underh.  Torts,  4;  I  Hil.  Torts,  I.) 
By  these  last  authors  a  tort  is  described  in  general  as  "a  wrong  inde- 
pendent of  contract."  And  yet,  it  is  conceded  that  a  tort  may  grow 
CHASE  (2o  ED.) — 10 


146  LAW  OB'   TORTS. 

out  of,  or  make  part  of,  or  be  coincident  with,  a  contract,  (2  Bouvier, 
supra ;)  and  that  precisely  the  same  state  of  facts  between  the  same 
parties  may  admit  of  an  action  either  ex  contractu  or  ex  delicto, 
(Cooley,  Torts,  90.)  In  such  cases  the  tort  is  dependent  upon,  while 
at  the  same  time  independent  of,  the  contract;  for  if  the  latter  im- 
poses the  legal  duty  upon  a  person,  the  neglect  of  that  duty  may  con- 
stitute a  tort  founded  upon  a  contract.  I  Add.  Torts,  13.  Ordinari- 
ly, the  essence  of  a  tort  consists  in  the  violation  of  some  duty  due  to 
an  individual,  which  duty  is  a  thing  different  from  the  mere  contract 
obligation.  When  such  duty  grows  out  of  relations  of  trust  and  con- 
fidence, as  that  of  the  agent  to  his  principal  or  the  lawyer  to  his  client, 
the  ground  of  the  duty  is  apparent,  and  the  tort  is,  in  general,  easily 
separable  from  the  mere  breach  of  contract.  But  where  no  such  re- 
lation flows  from  the  constituted  contract,  and  still  a  breach  of  its 
obligation  is  made  the  essential  and  principal  means,  in  combination 
with  other  and  perhaps  innocent  acts  and  conditions,  of  inflicting  an- 
other and  different  injury,  and  accomplishing  another  and  different 
purpose,  the  question  whether  such  invasion  of  a  right  is  actionable 
as  a  breach  of  contract  only,  or  also  as  a  tort,  leads  to  a  somewhat 
difficult  search  for  a  distinguishing  test. 

In  the  present  case,  the  learned  counsel  for  the  respondent  seems 
to  free  himself  from  the  difficulty  by  practically  denying  the  existence 
of  any  relation  between  the  parties  except  that  constituted  by  the 
contract  itself,  and  then,  insisting  that  such  relation  was  not  of  a 
character  to  originate  any  separate  and  distinct  legal  duty,  argues 
that,  therefore,  the  bare  violation  of  the  contract  obligation  created 
merely  a  breach  of  contract,  and  not  a  tort.  He  says  that  the  several 
instruments  put  in  evidence  showed  that  there  never  had  been  any  re- 
lation between  the  plaintiff  and  the  railroad  company,  except  that  of 
parties  contracting  in  reference  to  certain  specific  subjects,  by  plain 
and  distinct  agreements,  for  any  breach  of  which  the  parties,  respec- 
tively, would  have  a  remedy,  but  none  of  which  created  any  such 
rights  as  to  lay  the  foundation  for  a  charge  of  willful  misconduct  or 
any  other  tortious  act.  Upon  this  theory,  the  case  was  tried.  Every 
offer  to  prove  the  contracts,  and  especially  their  breach,  was  resisted 
upon  the  ground  that  the  complaint,  through  all  its  long  history  of 
plaintiff's  grievances,  alleged  but  a  single  cause  of  action,  and  that 
for  a  tort,  and  therefore  something  else,  above  and  beyond  and  out- 
side of  a  mere  breach  of  contract,  must  be  shown,  and  proof  of  such 
breach  was  immaterial.  And  in  the  end  the  plaintiff  was  nonsuited 
because  he  had  given  no  proof  of  a  tort  or  a  fraud.  He  now  insists 
that  he  was  first  debarred  from  giving  such  proof,  and  then  nonsuited 
because  he  had  not  given  it. 

At  the  foundation  of  every  tort  must  lie  some  violation  of  a  legal 
duty,  and  therefore  some  unlawful  act  or  omission.  Cooley,  Torts, 
60.  The  one  separate  and  distinct  unlawful  act  or  omission  vJleged 


GENERAL  PRINCIPLES.  147 

in  this  complaint,  or  rather  the  only  one  so  separable  which  we  can 
see  may  have  been  unlawful,  was  the  unreasonable  delay  in  restoring 
the  depot  to  its  original  location;  and  that  was  unlawful,  not  inher- 
ently or  in  itself,  but  solely  by  force  of  the  contract  with  plaintiff. 
The  instigation  of  the  sale  on  foreclosure,  as  a  separate  fact,  may 
have  been  unkind,  or  even  malicious,  but  cannot  be  said  to  have  been 
unlawful.  The  mortgagee  had  a  perfect  right  to  sell,  judicially  es- 
tablished, and  what  it  might  lawfully  do  it  was  not  unlawful  to  ask  it 
to  do.  The  act  of  instigating  the  sale  may  be  material,  and  have 
force,  as  one  link  in  a  chain  of  events,  and  as  serving  to  explain  and 
characterize  an  unlawful  purpose,  pursued  by  unlawful  means ;  but, 
in  and  of  itself,  it  was  not  an  unlawful  act,  and  cannot  serve  as  the 
foundation  of  a  tort.  Randall  v.  Hazelton,  12  Allen,  412.  We  are 
forced  back,  therefore,  to  the  contract  for  re-establishing  the  depot, 
and  its  breach,  as  the  basis  or  foundation  of  the  tort  pleaded.  If  that 
will  not  serve  the  purpose  in  some  manner,  by  some  connection  with 
other  acts  and  conditions,  then  there  was  no  cause  of  action  for  a  tort 
stated  in  the  complaint.  We  are  thus  obliged  to  study  the  doctrine 
advanced  by  the  respondent,  and  measure  its  range  and  extent.  It 
rests  upon  the  idea  that,  unless  the  contract  creates  a  relation,  out  of 
which  relation  springs  a  duty,  independent  of  the  mere  contract  ob- 
ligation, though  there  may  be  a  breach  of  the  contract,  there  is  no 
tort,  since  there  is  no  duty  to  be  violated.  And  the  illustration  given 
is  the  common  case  of  a  contract  of  affreightment,  where,  beyond  the 
contract  obligation  to  transport  and  deliver  safely,  there  is  a  duty, 
born  of  the  relation  established,  to  do  the  same  thing.  In  such  a 
case,  and  in  the  kindred  cases  of  principal  and  agent,  of  lawyer  and 
client,  of  consignor  and  factor,  the  contract  establishes  a  legal  rela- 
tion of  trust  and  confidence ;  so  that,  upon  a  breach  of  the  contract, 
there  is  not  merely  a  broken  promise,  but,  outside  of  and  beyond  that, 
there  is  trust  betrayed  and  confidence  abused.  There  is  constructive 
fraud,  or  a  negligence  that  operates  as  such ;  and  it  is  that  fraud  and 
that  negligence  which,  at  bottom,  make  the  breach  of  contract  action- 
able as  a  tort.  Coggs  v.  Bernard,  2  Ld.  Raym.  909;  Orange  Bank  v. 
Brown,  3  Wend.  161,  162. 

So  far  we  see  no  reason  to  disagree  with  the  learned  counsel  for 
the  respondent  save  in  one  respect,  but  that  is  a  very  important  one. 
Ending  the  argument  at  this  point  leaves  the  problem  of  the  case  still 
unsolved.  If  a  cause  of  action  for  a  tort,  as  admitted,  was  stated  in 
the  complaint,  it  helps  us  but  little  to  learn  what  it  was  not,  and  that 
it  does  not  fall  within  a  certain  class  of  exceptional  cases,  and  cannot 
be  explained  by  them.  We  have  yet  to  understand  what  it  is,  if  it 
exists  at  all,  as  a  necessary  preliminary  to  any  just  appreciation  of  the 
relevancy  or  materiality  of  the  rejected  evidence.  The  general  term, 
as  we  have  remarked,  described  the  tort  pleaded  as  a  "clear  case  of 
fraud."  If  that  be  true,  it  cannot  depend  upon  a  fiduciary  or  other 


148  LAW  OF  TORTS. 

character  of  the  relation  constituted  by  the  contract  merely,  for  no 
such  relations  existed;  and  there  must  be  some  other  relation  not 
created  by  the  contract  alone,  from  which  sprang  the  duty  which  was 
violated.  Let  us  analyze  the  tort  alleged  somewhat  more  closely. 

At  the  date  of  the  contract,  the  complaint  shows  the  relative  situa- 
tion and  needs  of  the  two  parties.  The  railroad  company  desired  to 
close  the  draw  over  the  Nepperhan  river,  and  substitute  a  solid 
bridge.  With  the  growth  of  its  business  and  the  multitudes  of  its 
trains  the  draw  had  become  a  very  great  evil  and  a  serious  danger. 
The  effort  to  dispense  with  it  was  in  itself  natural  and  entirely  proper. 
On  the  other  hand,  the  plaintiff  was  both  a  riparian  owner  above  the 
draw,  and  likely  to  be  injured  in  that  ownership  by  a  permanent 
bridge,  and  had  suffered,  and  was  still  suffering,  from  a  severe  depre- 
ciation in  the  value  of  his  property  near  Main  street  by  the  previous 
removal  of  the  railroad  station.  The  defendant  was  so  far  master  of 
the  situation  that  it  could  and  did  shut  off  the  plaintiff  to  a  choice  of 
evils.  He  might  insist  upon  the  draw,  and  leave  his  mortgaged 
property  to  be  lost  from  depreciation,  and  save  his  riparian  rights,  or 
he  might  surrender  the  latter  to  save  the  former.  This  last  was  the 
alternative  which  he  selected,  and  the  contract  of  1877  was  the  result. 
In  the  making  of  this  contract  there  was  no  deceit  or  fraud,  and  no 
legal  or  actionable  wrong,  on  the  part  of  the  defendant.  If  it  drove 
a  hard  bargain,  and  had  the  advantage  in  the  negotiation,  it  at  least 
invaded  no  legal  right  of  the  plaintiff,  and  he  was  free  to  contract  or 
not,  as  he  pleased.  The  complaint  does  not  allege  that  at  the  execu- 
tion of  this  agreement  there  was  any  purpose  or  intention  of  not  ful- 
filling its  terms.  The  tort,  if  any,  originated  later.  What  remains 
then  is  this :  the  railroad  company  conceived  the  idea  of  closing 
Main  street  to  any  travel  where  it  passed  their  tracks  at  grade;  of 
substituting  a  bridge  crossing  in  its  stead ;  and  of  fencing  in  its  track 
along  the  street  beneath,  so  as  to  compel  access  to  the  cars  through 
its  depot  in  such  manner  that  the  purchase  of  tickets  could  be  com- 
pelled. This,  in  itself,  was  a  perfectly  lawful  purpose.  The  grade 
crossing  was  a  death  trap,  and  the  interest  of  the  company  and  the 
safety  of  individuals  alike  made  a  change  desirable,  and  the  closing 
in  of  the  depot  was  in  no  sense  reprehensible.  But  there  was  a  diffi- 
culty in  the  way.  The  plaintiff  again  stood  as  an  obstacle  in  the 
path.  The  closing  of  Main  street,  though  beneficial  to  the  company, 
was  to  him  and  his  adjoining  property  claimed  to  be  a  very  serious 
injury.  He  declined  to  consent,  except  upon  the  condition  of  an 
award  of  heavy  damages,  and  in  dread  of  that  peril  the  common 
council  refused  to  pass  the  necessary  ordinance.  At  this  point,  ac- 
cording to  the  allegations  of  the  complaint,  if  at  all  or  ever,  arose  the 
tort.  It  is  alleged  that  the  defendant,  in  order  to  reach  a  lawful  re- 
sult, planned  a  fraudulent  scheme  for  its  accomplishment  by  unlawful 
means,  and  through  an  injury  to  the  plaintiff,  which  would  strip  him 


GENERAL   PRINCIPLES.  149 

of  his  damages  by  a  complete  sacrifice  of  his  property.  That  plan 
was  executed  in  this  manner :  The  company  willfully  and  purposely 
refused  to  perform  its  contract.  It  had  built  its  permanent  bridge 
over  the  Nepperhan,  and  so  received  the  full  consideration  of  its 
promise ;  its  new  depot  was  substantially  finished  and  ready  for  occu- 
pation ;  and  no  just  reason  remained  why  its  contract  should  not  be 
fulfilled.  But  the  company  refused.  It  did  not  merely  neglect  or 
delay;  it  openly  and  publicly  refused.  The  purpose  of  that  public 
refusal  was  apparent.  It  was  to  drive  the  plaintiff's  mortgagee  to  a 
foreclosure ;  it  was  to  shut  out  from  plaintiff  that  appreciation  of  his 
property  which  would  enable  him  to  save  it ;  it  was  to  strip  him  of  it, 
so  as  to  extinguish  the  threatened  damages,  and  thus  procure  the  as- 
sent of  the  common  council,  and  get  Main  street  closed.  This  un- 
lawful refusal  to  perform  the  contract,  this  deliberate  announcement 
of  the  purpose  not  to  restore  the  depot,  was  well  calculated  to  influ- 
ence the  mortgagee  towards  a  foreclosure.  But  the  defendant's  di- 
rect instigation  was  added.  The  foreclosure  came;  the  mortgagee 
bid  in  the  property  at  a  sacrifice ;  swiftly  followed  a  release  of  dam- 
ages, an  ordinance  of  the  common  council,  the  closing  of  Main  street, 
and  then  the  restoration  of  the  depot. 

We  are  thus  able  to  see  what  the  tort  pleaded  was.  It  was  not 
a  constructive  fraud,  drawn  from  a  violation  of  a  duty  imposed  by 
law  out  of  some  specific  relation  of  trust  and  confidence,  but  an  ac- 
tual and  affirmative  fraud, — an  alleged  scheme  to  accomplish  a  law- 
ful purpose  by  unlawful  means.  There  was  here,  on  the  theory  of 
the  complaint,  something  more  than  a  mere  breach  of  contract. 
That  breach  was  not  the  tort ;  it  was  only  one  of  the  elements  which 
constituted  it.  Beyond  that,  and  outside  of  that,  there  was  said  to 
have  existed  a  fraudulent  scheme  and  device  by  means  of  that  breach 
to  procure  the  foreclosure  of  the  mortgage  at  a  particular  time  and 
under  such  circumstances  as  would  make  that  foreclosure  ruinous  to 
the  plaintiff's  rights,  and  remove  him  as  an  obstacle  by  causing  him 
to  lose  his  property,  and  thereby  his  means  of  resistance  to  the  pur- 
pose ultimately  sought.  In  other  words,  the  necessary  theory  of  the 
complaint  is  that  a  breach  of  contract  may  be  so  intended  and 
planned ;  so  purposely  fitted  to  time  and  circumstances  and  condi- 
tions ;  so  interwoven  into  a  scheme  of  oppression  and  fraud ;  so  made 
to  set  in  motion  innocent  causes  which  otherwise  would  not  operate, 
— as  to  cease  to  be  a  mere  breach  of  contract,  and  become,  in  its 
association  with  the  attendant  circumstances,  a  tortious  and  wrong- 
ful act  or  omission. 

It  may  be  granted  that  an  omission  to  perform  a  contract  obliga- 
tion is  never  a  tort,  unless  that  omission  is  also  an  omission  of  a 
legal  duty.  But  such  legal  duty  may  arise,  not  merely 'out  of  cer- 
tain relations  of  trust  and  confidence,  inherent  in  the  nature  of  the 
contract  itself,  as  in  the  case  referred  to  in  the  respondent's  argu- 


150  LAW  OF  TORTS. 

ment,  but  may  spring  from  extraneous  circumstances,  not  constitut- 
ing elements  of  the  contract  as  such,  although  connected  with  and 
dependent  upon  it,  and  born  of  that  wider  range  of  legal  duty  which 
is  due  from  every  man  to  his  fellow,  to  respect  his  rights  of  property 
and  person,  and  refrain  from  invading  them  by  force  or  fraud. 

It  is  then  doubtless  true  that  a  mere  contract  obligation  may  es- 
tablish no  relation  out  of  which  a  separate  or  specific  legal  duty 
arises,  and  yet  extraneous  circumstances  and  conditions,  in  connec- 
tion with  it,  may  establish  such  a  relation  as  to  make  its  performance 
a  legal  duty,  and  its  omission  a  wrong  to  be  redressed.  The  duty 
and  the  tort  grow  out  of  the  entire  range  of  facts,  of  which  the  breach 
of  the  contract  was  but  one.  The  whole  doctrine  is  accurately  and 
concisely  stated  in  i  Chit.  PI.  135,  that,  "if  a  common-law  duty  re- 
sult from  the  facts,  the  party  may  be  sued  in  tort  for  any  negligence 
or  misfeasance  in  the  execution  of  the  contract." 

Assuming,  now,  that  we  correctly  understand  what  the  tort  pleaded 
was,  and  which  was  conceded  to  constitute  a  cause  of  action,  it 
seems  to  us  quite  clear  that  the  plaintiff  was  improperly  barred  from 
proving  it.  From  the  very  nature  of  the  case,  a  fraud  can  seldom 
be  proved  directly,  and  almost  uniformly  is  an  inference  from  the 
character  of  the  whole  transaction,  and  the  surrounding  and  attend- 
ant circumstances.  Proof  of  the  contract,  and  its  breach,  of  the  de- 
lay in  restoring  of  the  depot,  and  the  reasons  therefor,  were  essen- 
tial links  in  the  chain.  If  the  proof  should  go  no  further,  a  non- 
suit would  be  proper,  but  without  these  elements  the  tort  alleged 
could  not  be  established  at  all.  And  so  the  situation  of  the  parties 
as  it  respected  their  several  properties,  the  existence  of  the  mortgage, 
the  agreement  to  postpone  the  sale,  were  elements  of  the  transac- 
tion proper  to  be  shown. 

The  judgment  should  be  reversed,  and  a  new  trial  granted,  costs 
to  abide  the  event.  All  concur,  except  RAPALLO  and  MILLER, 
JJ.,  not  voting. 

Judgment  reversed. 


GENERAL  PRINCIPLES.  151 


In  cases  of  contract,  -where  no  legal  duty  arises  independ- 
ent of  contract,  one  not  in  privity  with  the  defendant 
cannot  recover  against  him  in  tort. 

(10  Mees.  &  W.  109.) 

WINTERBOTTOM   v.    WRIGHT. 

(Court  of  Exchequer.     June  6,  1842.) 

CONTEACTOR'S  LIABILITY  FOB  INJUBY  TO  THIBD  PEBSON — PBIVITT. 

Defendant  contracted  with  the  postmaster  general  to  provide  a  mall- 
coach  to  convey  the  mail  between  two  places,  and  other  persons  contracted 
to  supply  horses  and  coachmen  for  the  same  purpose,  and  hired  plaintiff 
to  drive  the  coach.  Plaintiff,  while  driving  the  coach,  was  injured  by  its 
breaking  down  from  latent  defects  in  its  construction.  Held,  that  plain- 
tiff could  not  maintain  an  action  against  defendant  for  such  injury,  there 
being  no  privity  of  contract  between  them. 

Demurrer  to  pleas. 

Action  on  the  case.  The  declaration  stated  that  the  defendant 
was  a  contractor  for  the  supply  of  mail-coaches,  and  had  in  that 
character  contracted  for  hire  and  reward,  with  the  postmaster  gen- 
eral, to  provide  the  mail-coach  for  the  purpose  of  conveying  the 
mail-bags  from  Hartford,  in  the  county  of  Chester,  to  Holyhead; 
that  the  defendant,  under  and  by  virtue  of  the  said  contract,  had 
agreed  with  the  said  postmaster  general  that  the  said  mail-coach 
should,  during  the  said  contract,  be  kept  in  a  fit,  proper,  safe,  and 
secure  state  and  condition  for  the  said  purpose,  and  took  upon 
himself,  to-wit,  under  and  by  virtue  of  the  said  contract,  the  sole 
and  exclusive  duty,  charge,  care,  and  burden  of  the  repairs,  state, 
and  condition  of  the  said  mail-coach ;  and  it  had  become  and  was  the 
sole  and  exclusive  duty  of  the  defendant,  to-wit,  under  and  by  vir- 
tue of  his  said  contract,  to  keep  and  maintain  the  said  mail-coach 
in  a  fit,  proper,  safe,  and  secure  state  and  condition  for  the  purpose 
aforesaid;  that  Nathaniel  Atkinson  and  other  persons,  having  no- 
tice of  the  said  contract,  were  under  contract  with  the  postmaster 
general  to  convey  the  said  mail-coach  from  Hartford  to  Holyhead, 
and  to  supply  horses  and  coachmen  for  that  purpose,  and  also  not, 
on  any  pretense  whatever,  to  use  or  employ  any  other  coach  or  car- 
riage whatever  than  such  as  should  be  so  provided,  directed,  and 
appointed  by  the  postmaster  general ;  that  the  plaintiff,  being  a  mail- 
coachman,  and  thereby  obtaining  his  livelihood,  and  while  the  said 
several  contracts  were  in  force,  having  notice  thereof,  and  trusting 
to  and  confiding  in  the  contract  made  between  the  defendant  and 
the  postmaster  general,  and  believing  that  the  said  coach  was  in  a 
fit,  safe,  secure,  and  proper  state  and  condition  for  the  purpose 
aforesaid,  and  not  knowing  and  having  no  means  of  knowing  to  the 


152  LAW  OF  TORTS. 

contrary  thereof,  hired  himself  to  the  said  Nathaniel  Atkinson  and 
his  co-contractors  as  mail-coachman,  to  drive  and  take  the  conduct 
of  the  said  mail-coach,  which  but  for  the  said  contract  of  the  de- 
fendant he  would  not  have  done.  The  declaration  then  averred 
that  the  defendant  so  improperly  and  negligently  conducted  himself, 
and  so  utterly  disregarded  his  aforesaid  contract,  and  so  wholly 
neglected  and  failed  to  perform  his  duty  in  this  behalf,  that  hereto- 
fore, to-wit,  on  the  8th  of  August,  1840,  while  the  plaintiff,  as  such 
mail-coachman,  so  hired,  was  driving  the  said  mail-coach  from  Hart- 
ford to  Holyhead,  the  same  coach  being  a  mail-coach,  found  and  pro- 
vided by  the  defendant  under  his  said  contract,  and  the  defendant 
then  acting  under  his  said  contract,  and  having  the  means  of  know- 
ing and  then  well  knowing  all  the  aforesaid  premises,  the  said  mail- 
coach  being  then  in  a  frail,  weak,  infirm,  and  dangerous  state  and 
condition,  to-wit,  by  and  through  certain  latent  defects  in  the  state 
and  condition  thereof,  and  unsafe  and  unfit  for  the  use  and  purpose 
aforesaid,  and  from  no  other  cause,  circumstance,  matter  or  thing 
whatsoever,  gave  way  and  broke  down,  whereby  the  plaintiff  was 
thrown  from  his  seat,  and,  in  consequence  of  injuries  then  received, 
had  become  lamed  for  life.  To  this  declaration  the  defendant 
pleaded  several  pleas,  to  two  of  which  there  were  demurrers ;  but, 
as  the  court  gave  no  opinion  as  to  their  validity,  it  is  not  necessary 
to  state  them. 

Mr.  Peacock,  in  support  of  the  demurrers,  argued  against  the  suffi- 
ciency of  the  pleas. 

Mr.  Byles,  for  the  defendant,  objected  that  the  declaration  was 
bad  in  substance.  This  is  an  action  brought,  not  against  Atkin- 
son and  his  co-contractors,  who  were  the  employers  of  the  plaintiff, 
but  against  the  person  employed  by  the  postmaster  general,  and 
totally  unconnected  with  them  or  with  the  plaintiff.  Now,  it  is  a 
general  rule  that,  wherever  a  wrong  arises  merely  out  of  the  breach 
of  a  contract,  which  is  the  case  on  the  face  of  this  declaration, 
whether  the  form  in  which  the  action  is  conceived  be  ex  contractu 
or  ex  delicto,  the  party  who  made  the  contract  alone  can  sue.  Tol- 
lit  v.  Sherstone,  5  Mees.  &  W.  283.  If  the  rule  were  otherwise, 
and  privity  of  contract  were  not  requisite,  there  would  be  no  limit 
to  such  actions.  If  the  plaintiff  may,  as  in  this  case,  run  through 
the  length  of  three  contracts,  he  may  run  through  any  number  or 
series  of  them,  and  the  most  alarming  consequences  would  follow 
the  adoption  of  such  a  principle.  For  example,  every  one  of  the 
sufferers  by  such  an  accident  as  that  which  recently  happened  on 
the  Versailles  Railway  might  have  his  action  against  the  manufac- 
turer of  the  defective  axle.  So,  if  the  chain  cable  of  an  East  India- 
man  were  to  break,  and  the  vessel  went  aground,  every  person  af- 
fected, either  in  person  or  property,  by  the  accident,  might  have  an 
action  against  the  manufacturer,  and  perhaps  against  every  seller 


GENERAL  PRINCIPLES.  15S 

also  of  the  iron.  Again,  suppose  a  gentleman's  coachman  were  in- 
jured by  the  breaking  down  of  his  carriage,  if  this  action  be  main- 
tainable, he  might  bring  his  action  against  the  smith  or  the  coach- 
maker,  although  he  could  not  sue  his  master,  who  is  the  party  con- 
tracting with  him.  Priestley  v.  Fowler,  3  Mees.  &  W.  I.  There  is 
no  precedent  to  be  found  of  such  a  declaration,  except  one  in  8 
Wentworth,  Pleading,  397,  which  has  been  deemed  very  questiona- 
ble. Rapson  v.  Cubitt,  9  Mees.  &  W.  710,  is  an  .authority  to  show 
that  the  party  injured  by  the  negligence  of  another  cannot  go  be- 
yond the  party  who  did  the  injury,  unless  he  can  establish  that  the 
latter  stood  in  the  relation  of  a  servant  to  the  party  sued.  In  Witte 
v.  Hague,  2  Dowl.  &  R.  33,  where  the  plaintiff  sued  for  an  injury 
produced  by  the  explosion  of  a  steam-engine  boiler,  the  defendant 
was  personally  present  managing  the  boiler  at  the  time  of  the  acci- 
dent. Levy  v.  Langridge,  4  Mees.  &  W.  337,  will  probably  be  re- 
ferred to  on  the  other  side.  But  that  case  was  expressly  decided 
on  the  ground  that  the  defendant  who  sold  the  gun  by  which  the 
plaintiff  was  injured,  although  he  did  not  personally  contract  with 
the  plaintiff,  who  was  a  minor,  knew  that  it  was  bought  to  be  used 
by  him.  Here  there  is  no  allegation  that  the  defendant  knew  that 
the  coach  was  to  be  driven  by  the  plaintiff.  There,  moreover,  fraud 
was  alleged  in  the  declaration,  and  found  by  the  jury,  and  there, 
too,  the  cause  of  injury  was  a  weapon  of  a  dangerous  nature,  and 
the  defendant  was  alleged  to  have  had  notice  of  the  defect  in  its  con- 
struction. Nothing  of  that  sort  appears  upon  this  declaration. 

Mr.  Peacock,  contra. 

This  case  is  within  the  principle  of  the  decision  in  Levy  v.  Lang- 
ridge,  4  Mees.  &  W.  337.  Here  the  defendant  entered  into  a  con- 
tract with  a  public  officer  to  supply  an  article  which,  if  imperfectly 
constructed,  was  necessarily  dangerous,  and  which,  from  its  nature 
and  the  use  for  which  it  was  destined,  was  necessarily  to  be  driven 
by  a  coachman.  That  is  sufficient  to  bring  the  case  within  the  rule 
established  by  Levy  v.  Langridge.  In  that  case  the  contract  made 
by  the  father  of  the  plaintiff  with  the  defendant  was  made  on  behalf 
of  himself  and  his  family  generally,  and  there  was  nothing  to  show 
that  the  defendant  was  aware  even  of  the  existence  of  the  particular 
son  who  was  injured.  Suppose  a  party  made  a  contract  with  gov- 
ernment for  a  supply  of  muskets,  one  of  which,  from  its  miscon- 
struction, burst  and  injured  a  soldier.  There  it  is  clear  that  the  use 
of  the  weapon  by  a  soldier  would  have  been  contemplated,  although 
not  by  the  particular  individual  who  received  the  injury;  and  could 
it  be  .said,  since  the  decision  in  Levy  v.  Langridge,  that  he  could 
not  maintain  an  action  against  the  contractor?  So,  if  a  coach- 
maker,  employed  to  put  on  the  wheels  of  a  carriage,  did  it  so  neg- 
ligently that  one  of  them  flew  off,  and  a  child  of  the  owner  were 
thereby  injured,  the  damage  being  the  natural  and  immediate  con- 


154  LAW  OF  TORTS. 

sequence  of  his  negligence,  he  would  surely  be  responsible.  So,  if 
a  party  entered  into  a  contract  to  repair  a  church,  a  work-house, 
or  other  public  building,  and  did  it  so  insufficiently  that  a  person 
attending  the  former,  or  a  pauper  in  the  latter,  was  injured  by  the 
falling  of  a  stone,  he  could  not  maintain  action  against  any  other 
person  than  the  contractor,  but  against  him  he  must  surely  have  a 
remedy.  It  is  like  the  case  of  a  contractor  who  negligently  leaves 
open  a  sewer,  whereby  a  person  passing  along  the  street  is  injured. 
It  is  clear  that  no  action  could  be  maintained  against  the  postmaster 
general.  Hall  v.  Smith,  2  Bing.  156;  Humphreys  v.  Mears,  I  Man. 
&  R.  187;  Priestley  v.  Fowler,  3  Mees.  &  W.  i.  But  here  the 
declaration  alleges  the  accident  to  have  happened  through  the  de- 
fendant's negligence  and  want  of  care.  The  plaintiff  had  no  oppor- 
tunity of  seeing  that  the  carriage  was  sound  and  secure.  [Alder- 
son,  B. :  The  decision  in  Levy  v.  Langridge  proceeds  upon  the 
ground  of  the  knowledge  and  fraud  of  the  defendant.]  Here  also 
there  was  fraud:  the  defendant  represented  the  coach  to  be  in  a 
proper  state  for  use,  and  whether  he  represented  that  which  is  false 
within  his  knowledge,  or  a  fact  as  true  which  he  did  not  know  to 
be  so,  it  was  equally  a  fraud  in  point  of  law,  for  which  he  is  respon- 
sible. 

ABINGER,  C.  B.  I  am  clearly  of  opinion  that  the  defendant 
is  entitled  to  our  judgment.  We  ought  not  to  permit  a  doubt  to  rest 
upon  this  subject,  for  our  doing  so  might  be  the  means  of  letting 
in  upon  us  an  infinity  of  actions.  This  is  an  action  of  the  first  im- 
pression, and  it  has  been  brought  in  spite  of  the  precautions  which 
were  taken  in  the  judgment  of  this  court  in  the  case  of  Levy  v. 
Langridge,  4  Mees.  &  W.  337,  to  obviate  any  notion  that  such  an 
action  could  be  maintained.  We  ought  not  to  attempt  to  extend 
the  principle  of  that  decision,  which,  although  it  has  been  cited  in 
support  of  this  action,  wholly  fails  as  an  authority  in  its  favor; 
for  there  the  gun  was  bought  for  the  use  of  the  son,  the  plaintiff 
in  that  action,  who  could  not  make  the  bargain  himself,  but  was 
really  and  substantially  the  party  contracting.  Here  the  action  is 
brought  simply  because  the  defendant  was  a  contractor  with  a  third 
person,  and  it  is  contended  that  thereupon  he  became  liable  to 
everybody  who  might  use  the  carriage.  If  there  had  been  any 
ground  for  such  action,  there  certainly  would  have  been  some  prec- 
edent of  it;  but,  with  the  exception  of  actions  against  innkeepers 
and  some  few  other  persons,  no  case  of  a  similar  nature  has  oc- 
curred in  practice.  That  is  a  strong  circumstance,  and  is  of  itself  a 
great  authority  against  its  maintenance.  It  is,  however,  contended 
that,  this  contract  being  made  on  the  behalf  of  the  public  by  the 
postmaster  general,  no  action  could  be  maintained  against  him, 
and  therefore  the  plaintiff  must  have  a  remedy  against  the  defend- 


GENERAL   PRINCIPLES.  155 

ant.  But  that  is  by  no  means  a  necessary  consequence, — he  may 
be  remediless  altogether.  There  is  no  privity  of  contract  between 
these  parties ;  and  if  the  plaintiff  can  sue,  every  passenger,  even  any 
person  passing  along  the  road,  who  was  injured  by  the  upsetting 
of  the  coach,  might  bring  a  similar  action.  Unless  we  confine  the 
operation  of  such  contracts  as  this  to  the  parties  who  entered  into 
them,  the  most  absurd  and  outrageous  consequences,  to  which  I 
can  see  no  limit,  would  ensue.  Where  a  party  becomes  responsi- 
ble to  the  puhlic,  by  undertaking  a  public  duty,  he  is  liable,  though 
the  injury  may  have  arisen  from  the  negligence  of  his  servant  or 
agent.  So,  in  cases  of  public  nuisances,  whether  the  act  was  done 
by  the  party  as  a  servant,  or  in  any  other  capacity,  you  are  liable 
to  an  action  at  the  suit  of  any  person  who  suffers.  These,  however, 
are  cases  where  the  real  ground  of  the  liability  is  the  public  duty, 
or  the  commission  of  the  public  nuisance.  There  is  also  a  class  of 
cases  in  which  the  law  permits  a  contract  to  be  turned  into  a  tort; 
but,  unless  there  has  been  some  public  duty  undertaken,  or  public 
nuisance  committed,  they  are  all  cases  in  which  an  action  might 
have  been  maintained  upon  the  contract.  Thus  a  carrier  may  be 
sued  either  in  assumpsit  or  case ;  but  there  is  no  instance  in  which 
a  party,  who  was  not  privy  to  the  contract  entered  into  with  him, 
can  maintain  any  such  action.  The  plaintiff  in  this  case  could  not 
have  brought  an  action  on  the  contract.  If  he  could  have  done  so, 
what  would  have  been  his  situation,  supposing  the  postmaster  gen- 
eral had  released  the  defendant?  That  would,  at  all  events,  have 
defeated  his  claim  altogether.  By  permitting  this  action,  we  should 
be  working  this  injustice :  that  after  the  defendant  had  done  every- 
thing to  the  satisfaction  of  his  employer,  and  after  all  matters  be- 
tween them  had  been  adjusted,  and  all  accounts  settled  on  the  foot- 
ing of  their  contract,  we  should  subject  them  to  be  ripped  open  by 
this  action  of  tort  being  brought  against  him. 

ALJDERSON,  B.  I  am  of  the  same  opinion.  The  contract  in 
this  case  was  made  with  the  postmaster  general  alone ;  and  the  case 
is  just  the  same  as  if  he  had  come  to  the  defendant,  and  ordered  a 
carriage,  and  handed  it  at  once  over  to  Atkinson.  If  we  were  to 
hold  that  the  plaintiff  could  sue  in  such  a  case,  there  is  no  point  at 
which  such  actions  would  stop.  The  only  safe  rule  is  to  confine 
the  right  to  recover  to  those  who  enter  into  the  contract;  if  we  go 
one  step  beyond  that,  there  is  no  reason  why  we  should  not  go  fifty. 
The  only  real  argument  in  favor  of  the  action  is  that  this  is  a  case 
of  hardship;  but  that  might  have  been  obviated,  if  the  plaintiff  had 
made  himself  a  party  to  the  contract.  Then  it  is  urged  that  it  falls 
within  the  principle  of  the  case  of  Levy  v.  Langridge.  But  the  prin- 
ciple of  that  case  was  simply  this:  that,  the  father  having  bought 
the  gun  for  the  very  purpose  of  being  used  by  the  plaintiff,  the  de- 


156  LAW  OF  TORTS. 

fendant  made  representations  by  which  he  was  induced  to  use  it. 
There  a  distinct  fraud  was  committed  on  the  plaintiff.  The  false- 
hood of  the  representation  was  also  alleged  to  have  been  within 
the  knowledge  of  the  defendant  who  made  it,  and  he  was  properly 
held  liable  for  the  consequences.  How  are  the  facts  of  that  case 
applicable  to  those  of  the  present?  Where  is  the  allegation  of  mis- 
representation or  fraud  in  this  declaration?  It  shows  nothing  of  the 
kind.  Our  judgment  must  therefore  be  for  the  defendant. 

ROLFE,  B.  The  breach  of  the  defendant's  duty,  stated  in  this 
declaration,  is  his  omission  to  keep  the  carriage  in  a  safe  condition ; 
and,  when  we  examine  the  mode  in  which  that  duty  is  alleged  to 
have  arisen,  we  find  a  statement  that  the  defendant  took  upon  him- 
self, to-wit,  under  and  by  virtue  of  the  said  contract,  the  sole  and 
exclusive  duty,  charge,  care,  and  burden  of  the  repairs,  state,  and 
condition  of  the  said  mail-coach,  and  during  all  the  time  aforesaid 
it  had  become  and  was  the  sole  and  exclusive  duty  of  the  defendant, 
to-wit,  under  and  by  virtue  of  his  said  contract,  to  keep  and  main- 
tain the  said  mail-coach  in  a  fit,  proper,  safe,  and  secure  state  and 
condition.  The  duty,  therefore,  is  shown  to  have  arisen  solely  from 
the  contract ;  and  the  fallacy  consists  in  the  use  of  that  word  "duty." 
If  a  duty  to  the  postmaster  general  be  meant,  that  is  true ;  but  if  a 
duty  to  the  plaintiff  be  intended,  (and  in  that  sense  the  word  is  evi- 
dently used,)  there  was  none.  This  is  one  of  those  unfortunate 
cases  in  which  there  certainly  has  been  damnum,  but  it  is  damnum 
absque  injuria.  It  is,  no  doubt,  a  hardship  upon  the  plaintiff  to  be 
without  a  remedy,  but  by  that  consideration  we  ought  not  to  be 
influenced.  Hard  cases,  it  has  been  frequently  observed,  are  apt  to 
introduce  bad  law. 

Judgment  for  the  defendant. 

(Supporting  the  same  doctrine  are  Standard  Oil  Co.  v.  Murray,  119  Fed. 
572,  57  C.  C.  A.  1;  Carter  v.  Harden,  78  Me.  528,  7  Atl.  392;  Marvin  Safe  Co. 
v.  Ward,  4G  N.  J.  Law,  19;  Losee  v.  Clute,  51  N.  Y.  494,  10  Am.  Rep.  638; 
Kuelling  v.  Roderick  Mfg.  Co.,  88  App.  Div.  309,  84  N.  Y.  Supp.  622;  Curtin 
v.  Somerset,  140  Pa.  70,  21  Atl.  244,  12  L.  R.  A.  322.  23  Am.  St.  Rep.  220; 
Roddy  v.  Mo.  Pac.  R.  Co.,  104  Mo.  234,  15  S.  W.  1112,  12  L.  R.  A.  746,  24  Am. 
St.  Rep.  333;  Zieman  v.  Kieckhefer  Elevator  Co.,  90  Wis.  497,  03  N.  W.  1021; 
Davidson  v.  Nichols,  11  Allen,  514.  The  doctrine  is  fully  considered  and  many 
illustrative  cases  cited  in  Huset  v.  Case  Machine  Co.,  120  Fed.  865,  57  C.  C. 
A.  237,  61  L.  R.  A.  303.) 


GENERAL  PRINCIPLES.  157 

But  if;  in  cases  of  contract,  the  law  imposes  a  duty  towards 
third  persons  who  are  not  parties  to  the  contract,  such 
persons  may  recover  in  an  action  of  tort. 

(6  N.  Y.  397,  57  Am.  Dec.  455.) 

THOMAS  et  al.  v.  WINCHESTER. 

(Court  of  Appeals  of  New  York.     July,  1852.) 

BREACH  OF  CONTRACT  INVOLVING  VIOLATION  OF  LEGAL  DUTY  TO  THIBD  PER- 
SONS—PRIVITY. 

Defendant,  a  manufacturer  of  and  dealer  in  vegetable  extracts  for  me- 
dicinal purposes,  labeled  and  sold,  as  extract  of  dandelion,  which  is  a 
harmless  medicine,  extract  of  belladonna,  a  poison,  resembling  in  appear- 
ance the  extract  of  dandelion;  and,  after  it  had  passed  through  the  hands 
of  other  dealers,  a  portion  of  it  was  sold  and  administered,  as  extract  of 
dandelion,  to  a  patient,  who  was  seriously  injured  thereby.  Held,  that 
defendant  was  liable  in  damages  to  the  person  so  injured,  although  there 
was  no  privity  between  them,  on  the  ground  of  a  breach  of  the  duty  aris- 
ing out  of  the  nature  of  defendant's  business  and  the  danger  to  others 
incident  to  its  mismanagement. 

Appeal  from  Supreme  Court,  General  Term,  Sixth  District. 

Action  by  Samuel  Thomas  and  Mary  Ann  Thomas,  his  wife, 
against  the  defendants,  Winchester  and  Gilbert,  for  injuries  to  the 
plaintiff  Mrs.  Thomas,  alleged  to  have  been  caused  by  the  negli- 
gence of  defendants.  At  the  trial  a  verdict  was  rendered  for  plain- 
tiffs against  the  defendant  Winchester  only,  the  defendant  Gilbert 
having  been  acquitted  by  direction  of  the  judge.  A  motion  by  de- 
fendant Winchester  for  a  new  trial  was  denied,  and  judgment  for 
plaintiffs  was  entered  on  the  verdict.  Defendant  Winchester  ap- 
pealed from  the  judgment. 

RUGGLES,  C.  J.  This  is  an  action  brought  to  recover  damages 
from  the  defendant  for  negligently  putting  up,  labeling,  and  selling, 
as  and  for  the  extract  of  dandelion,  which  is  a  simple  and  harmless 
medicine,  a  jar  of  the  extract  of  belladonna,  which  is  a  deadly  poison ; 
by  means  of  which  the  plaintiff  Mary  Ann  Thomas,  to  whom,  being 
sick,  a  dose  of  dandelion  was  prescribed  by  a  physician,  and  a  por- 
tion of  the  contents  of  the  jar  was  administered  as  and  for  the  ex- 
tract of  dandelion,  was  greatly  injured,  etc.  The  facts  proved  were 
briefly  these:  Mrs.  Thomas  being  in  ill  health,  her  physicians  pre- 
scribed for  her  a  dose  of  dandelion.  Her  husband  purchased  what 
was  believed  to  be  the  medicine  prescribed,  at  the  store  of  Dr. 
Foord,  a  physician  and  druggist  in  Cazenovia,  Madison  county, 
where  the  plaintiffs  reside.  A  small  quantity  of  the  medicine  thus 
purchased  was  administered  to  Mrs.  Thomas,  on  whom  it  produced 
very  alarming  effects;  such  as  coldness  of  the  surface  and  extrem- 


158  LAW  OF  TORTS. 

ities,  feebleness  of  circulation,  spasms  of  the  muscles,  giddiness 
of  the  head,  dilation  of  the  pupils  of  the  eyes,  and  derangement  of 
mind.  She  recovered,  however,  after  some  time,  from  its  effects, 
although  for  a  short  time  her  life  was  thought  to  be  in  great  dan- 
ger. The  medicine  administered  was  belladonna,  and  not  dandelion. 
The  jar  from  which  it  was  taken  was  labeled,  "l/2  Ib.  dandelion,  pre- 
pared by  A.  Gilbert,  No.  108  John  street,  N.  Y. ;  jar,  8  oz."  It  was 
sold  for  and  believed  by  Dr.  Foord  to  be  the  extract  of  dandelion 
as  labeled.  Dr.  Foord  purchased  the  article  as  the  extract  of  dan- 
delion from  James  S.  Aspinwall,  a  druggist  at  New  York.  Aspin- 
wall  bought  it  of  the  defendant  as  extract  of  dandelion,  believing 
it  to  be  such.  The  defendant  was  engaged  at  No.  108  John  street, 
New  York,  in  the  manufacture  and  sale  of  certain  vegetable  ex- 
tracts for  medicinal  purposes,  and  in  the  purchase  and  sale  of  oth- 
ers. The  extracts  manufactured  by  him  were  put  up  in  jars  for 
sale,  and  those  which  he  purchased  were  put  up  by  him  in  like  man- 
ner. The  jars  containing  extracts  manufactured  by  himself  and 
those  containing  extracts  purchased  by  him  from  others  were  la- 
beled alike.  Both  were  labeled  like  the  jar  in  question,  "as  pre- 
pared by  A.  Gilbert."  Gilbert  was  a  person  employed  by  the  defend- 
ant at  a  salary  as  an  assistant  in  his  business.  The  jars  were  labeled 
in  Gilbert's  name,  because  he  had  been  previously  engaged  in  the 
same  business  on  his  own  account  at  No.  108  John  street,  and  prob- 
ably because  'Gilbert's  labels  rendered  the  articles  more  salable. 
The  extract  contained  in  the  jar  sold  to  Aspinwall,  and  by  him  to 
Foord,  was  not  manufactured  by  the  defendant,  but  was  purchased 
by  him  from  another  manufacturer  or  dealer.  The  extract  of  dande- 
lion and  the  extract  of  belladonna  resemble  each  other  in  color, 
consistence,  smell,  and  taste;  but  may,  on  careful  examination,  be 
distinguished,  the  one  from  the  other,  by  those  who  are  well  ac- 
quainted with  those  articles.  Gilbert's  labels  were  paid  for  by  Win- 
chester, and  used  in  his  business,  with  his  knowledge  and  assent. 

The  defendant's  counsel  moved  for  a  nonsuit  on  the  following 
grounds :  (i)  That  the  action  could  not  be  sustained,  as  the  defend- 
ant was  the  remote  vendor  of  the  article  in  question ;  and  there  was 
no  connection,  transaction,  or  privity  between  him  and  the  plaintiffs, 
or  either  of  them.  (2)  That  this  action  sought  to  charge  the  defend- 
ant with  the  consequences  of  the  negligence  of  Aspinwall  and  Foord. 
(3)  That  the  plaintiffs  were  liable  to  and  chargeable  with  the  neg- 
ligence of  Aspinwall  and  Foord,  and  therefore  could  not  maintain 
this  action.  (4)  That,  according  to  the  testimony,  Foord  was  charge- 
able with  negligence,  and  that  the  plaintiffs,  therefore,  could  not 
sustain  this  suit  against  the  defendant;  if  they  could  sustain  a  suit 
at  all,  it  would  be  against  Foord  only.  (5)  That  this  suit  being 
brought  for  the  benefit  of  the  wife,  and  alleging  her  as  the  meritori- 
ous cause  of  action,  cannot  be  sustained.  (6)  That  there  was  not 


GENERAL  PRINCIPLES.  159 

sufficient  evidence  of  negligence  in  the  defendant  to  go  to  the  jury 
The  judge  overruled  the  motion  for  a  nonsuit,  and  the  defendant's 
counsel  excepted. 

The  judge,  among  other  things,  charged  the  jury  that  if  they 
should  find  from  the  evidence  that  either  Aspinwall  or  Foord  was 
guilty  of  negligence  in  vending,  as  and  for  dandelion,  the  extract 
taken  by  Mrs.  Thomas,  or  that  the  plaintiff  Thomas,  or  those  who 
administered  it  to  Mrs.  Thomas,  were  chargeable  with  negligence 
in  administering  it,  the  plaintiffs  were  not  entitled  to  recover;  but 
if  they  were  free  from  negligence,  and  if  the  defendant  Winchester 
was  guilty  of  negligence  in  putting  up  and  vending  the  extracts  in 
question,  the  plaintiffs  were  entitled  to  recover,  provided  the  ex- 
tract administered  to  Mrs.  Thomas  was  the  same  which  was  put 
up  by  the  defendant,  and  sold  by  him  to  Aspinwall,  and  by  Aspin- 
wall to  Foord.  That,  if  they  should  find  the  defendant  liable,  the 
plaintiffs  in  this  action  were  entitled  to  recover  damages  only  for 
the  personal  injury  and  suffering  of  the  wife,  and  not  for  loss  of 
service,  medical  treatment,  or  expense  to  the  husband,  and  that  the 
recovery  should  be  confined  to  the  actual  damages  suffered  by  the 
wife.  The  action  was  properly  brought  in  the  name  of  the  husband 
and  wife  for  the  personal  injury  and  suffering  of  the  wife,  and  the 
case  was  left  to  the  jury  with  the  proper  directions  on  that  point, 
i  Chit.  PL  (Ed.  of  1828)  62. 

The  case  depends  on  the  first  point  taken  by  the  defendant  on  his 
motion  for  a  nonsuit;  and  the  question  is  whether,  the  defendant 
being  a  remote  vendor  of  the  medicine,  and  there  being  no  privity 
or  connection  between  him  and  the  plaintiffs,  the  action  can'  be 
maintained.  If,  in  labeling  a  poisonous  drug  with  the  name  of  a 
harmless  medicine,  for  public  market,  no  duty  was  violated  by  the 
defendant,  excepting  that  which  he  owed  to  Aspinwall,  his  imme- 
diate vendee,  in  virtue  of  his  contract  of  sale,  this  action  cannot  be 
maintained.  If  A  build  a  wagon,  and  sell  it  to  B,  who  sells  it  to 
C,  and  C  hires  it  to  D,  who,  in  consequence  of  the  gross  negli- 
gence of  A  in  building  the  wagon,  is  overturned  and  injured,  D 
cannot  recover  damages  against  A,  the  builder.  A's  obligation  to 
build  the  wagon  faithfully  arises  solely  out  of  his  contract  with  B. 
The  public  have  nothing  to  do  with  it.  Misfortune  to  third  persons, 
not  parties  to  the  contract,  would  not  be  a  natural  and  necessary 
consequence  of  the  builder's  negligence ;  and  such  negligence  is  not 
an  act  imminently  dangerous  to  human  life.  So,  for  the  same  rea- 
son, if  a  horse  be  defectively  shod  by  a  smith,  and  a  person  hiring 
the  horse  from  the  owner  is  thrown  and  injured  in  consequence  of 
the  smith's  negligence  in  shoeing,  the  smith  is  not  liable  for  the  in- 
jury. The  smith's  duty  in  such  case  grows  exclusively  out  of  his 
contract  with  the  owner  of  the  horse.  It  was  a  duty  which  the 
smith  owed  to  him  alone,  and  to  no  one  else.  And,  although  the 


160  LAW  OF  TORTS. 

injury  to  the  rider  may  have  happened  in  consequence  of  the  negli- 
gence of  the  smith,  the  latter  was  not  bound,  either  by  his  contract 
or  by  any  considerations  of  public  policy  or  safety,  to  respond  for 
his  breach  of  duty  to  any  one  except  the  person  he  contracted  with. 
This  was  the  ground  on  which  the  case  of  Winterbottom  v.  Wright, 
10  Mees.  &  W.  109,  was  decided.  A  contracted  with  the  postmaster 
general  to  provide  a  coach  to  convey  the  mail-bags  along  a  certain 
line  of  road,  and  B  and  others  also  contracted  to  horse  the  coach 
along  the  same  line.  B  and  his  co-contractors  hired  C,  who  was 
the  plaintiff,  to  drive  the  coach.  The  coach,  in  consequence  of  some 
latent  defect,  broke  down.  The  plaintiff  was  thrown  from  his  seat, 
and  lamed.  It  was  held  that  C  could  not  maintain  an  action  against 
A  for  the  injury  thus  sustained.  The  reason  of  the  decision  is  best 
stated  by  Baron  Rolfe:  A's  duty  to  keep  the  coach  in  good  condi- 
tion was  a  duty  to  the  postmaster  general,  with  whom  he  made  his 
contract,  and  not  a  duty  to  the  driver  employed  by  the  owners  of  the 
horses. 

But  the  case  in  hand  stands  on  a  different  ground.  The  defend- 
ant was  a  dealer  in  poisonous  drugs.  Gilbert  was  his  agent  in  pre- 
paring them  for  market.  The  death  or  great  bodily  harm  of  some 
person  was  the  natural  and  inevitable  consequence  of  the  sale  of 
belladonna  by  means  of  the  false  label.  Gilbert,  the  defendant's 
agent,  would  have  been  punishable  for  manslaughter  if  Mrs.  Thomas 
had  died  in  consequence  of  taking  the  falsely  labeled  medicine. 
Every  man  who,  by  his  culpable  negligence,  causes  the  death  of 
another,  although  without  intent  to  kill,  is  guilty  of  manslaughter. 
2  Rev.  St.  p.  662,  §  19.  A  chemist  who  negligently  sells  laudanum 
in  a  phial  labeled  as  paregoric,  and  thereby  causes  the  death  of  a 
person  to  whom  it  was  administered,  is  guilty  of  manslaughter. 
Tessymond's  Case,  I  Lewin,  Cr.  Cas.  169.  "So  highly  does  the 
law  value  human  life  that  it  admits  of  no  justification  wherever  life 
has  been  lost,  and  the  carelessness  or  negligence  of  one  person 
has  contributed  to  the  death  of  another."  Regina  v.  Swindall,  2 
Car.  &  K.  232,  233.  And  this  rule  applies,  not  only  where  the 
death  of  one  is  occasioned  by  the  negligent  act  of  another,  but 
where  it  is  caused  by  the  negligent  omission  of  a  duty  of  that  other. 
Regina  v.  Haines,  Id.  368,  371.  Although  the  defendant,  Win- 
chester, may  not  be  answerable  criminally  for  the  negligence  of  his 
agent,  there  can  be  no  doubt  of  his  liability  in  a  civil  action,  in 
which  the  act  of  the  agent  is  to  be  regarded  as  the  act  of  the  prin- 
cipal. 

In  respect  to  the  wrongful  and  criminal  character  of  the  negligence 
complained  of,  the  case  differs  widely  from  those  put  by  the  defend- 
ant's counsel.  No  such  imminent  danger  existed  in  those  cases. 
In  the  present  case  the  sale  of  the  poisonous  article  was  made  to  a 
dealer  in  drugs,  and  not  to  a  consumer.  The  injury,  therefore,  was 


GENERAL  PRINCIPLES.  161 

not  likely  to  fall  on  him,  or  on  his  vendee,  who  was  also  a  dealer; 
but  much  more  likely  to  be  visited  on  a  remote  purchaser,  as  ac- 
tually happened.  The  defendant's  negligence  put  human  life  in  im- 
minent danger.  Can  it  be  said  that  there  was  no  duty  on  the  part 
of  the  defendant  to  avoid  the  creation  of  that  danger  by  the  exercise 
of  greater  caution,  or  that  the  exercise  of  that  caution  was  a  duty 
only  to  his  immediate  vendee,  whose  life  was  not  endangered?  The 
defendant's  duty  arose  out  of  the  nature  of  his  business  and  the  dan- 
ger to  others  incident  to  its  mismanagement.  Nothing  but  mis- 
chief like  that  which  actually  happened  could  have  been  expected 
from  sending  the  poison  falsely  labeled  into  the  market,  and  the  de- 
fendant is  justly  responsible  for  the  probable  consequences  of  the 
act.  The  duty  of  exercising  caution  in  this  respect  did  not  arise 
out  of  the  defendant's  contract  of  sale  to  Aspinwall.  The  wrong 
done  by  the  defendant  was  in  putting  the  poison,  mislabeled,  into 
the  Jiands  of  Aspinwall,  as  an  article  of  merchandise,  to  be  sold  and 
afterwards  used  as  the  extract  of  dandelion,  by  some  person  then 
unknown.  The  owner  of  a  horse  and  cart  who  leaves  them  unat- 
tended in  the  street  is  liable  for  any  damage  which  may  result  from 
his  negligence.  Lynch  v.  Nurdin,  I  Adol.  &  E.  (N.  S.)  29;  Illidge 
v.  Goodwin,  5  Car.  &  P.  190.  The  owner  of  a  loaded  gun  who  puts 
it  into  the  hands  of  a  child,  by  whose  indiscretion  it  is  discharged, 
is  liable  for  the  damage  occasioned  by  the  discharge.  Dixon  v.  Bell, 
5  Maule  &  S.  198. 

The  defendant's  contract  of  sale  to  Aspinwall  does  not  excuse  the 
wrong  done  to  the  plaintiffs.  It  was  a  part  of  the  means  by  which 
the  wrong  was  effected.  The  plaintiffs'  injury  and  their  remedy 
would  have  stood  on  the  same  principle  if  the  defendant  had  given 
the  belladonna  to  Dr.  Foord  without  price,  or  if  he  had  put  it  in 
his  shop  without  his  knowledge,  under  circumstances  which  would 
probably  have  led  to  its  sale  on  the  faith  of  the  label.  In  Long- 
meid  v.  Holliday,  6  Law  &  Eq.  Rep.  562,  the  distinction  is  recognized 
between  an  act  of  negligence  imminently  dangerous  to  the  lives  of 
others,  and  one  that  is  not  so.  In  the  former  case,  the  party  guilty 
of  the  negligence  is  liable  to  the  party  injured,  whether  there  be  a 
contract  between  them  or  not;  in  the  latter,  the  negligent  party  is 
liable  only  to  the  party  with  whom  he  contracted,  and  on  the  ground 
that  negligence  is  a  breach  of  the  contract. 

The  defendant  on  the  trial  insisted  that  Aspinwall  and  Foord  were 
guilty  of  negligence  in  selling  the  article  in  question  for  what  it  was 
represented  to  be  in  the  label,  and  that  the  suit,  if  it  could  be  sus- 
tained at  all,  should  have  been  brought  against  Foord.  The  judge 
charged  the  jury  that  if  they,  or  either  of  them,  were  guilty  of  neg- 
ligence in  selling  the  belladonna  for  dandelion,  the  verdict  must  be 
for  the  defendant,  and  left  the  question  of  their  negligence  to  the 
jury,  who  found  on  that  point  for  the  plaintiffs.  If  the  case  really 
CHASE  (2o  ED.) — 11 


162  LAW  OF  TORTS. 

depended  on  the  point  thus  raised,  the  question  was  properly  left 
to  the  jury.  But  I  think  it  did  not.  The  defendant,  by  affixing  the 
label  to  the  jar,  represented  its  contents  to  be  dandelion,  and  to 
have  been  "prepared"  by  his  agent,  Gilbert.  The  word  "prepared" 
on  the  label  must  be  understood  to  mean  that  the  article  was  manu- 
factured by  him,  or  that  it  had  passed  through  some  process  under 
his  hands,  which  would  give  him  personal  knowledge  of  its  true 
name  and  quality.  Whether  Foord  was  justified  in  selling  the  ar- 
ticle upon  the  faith  of  the  defendant's  label  would  have  been  an  opeit 
question  in  an  action  by  the  plaintiffs  against  him,  and  I  wish  to  be 
understood  as  giving  no  opinion  on  that  point.  But  it  seems  to  me 
to  be  clear  that  the  defendant  cannot,  in  this  case,  set  up  as  a  de- 
fense that  Foord  sold  the  contents  of  the  jar  as  and  for  what  the 
defendant  represented  it  to  be.  The  label  conveyed  the  idea  dis- 
tinctly to  Foord  that  the  contents  of  the  jar  was  the  extract  of  dan- 
delion, and  that  the  defendant  knew  it  to  be  such.  So  far  as  the  de- 
fendant is  concerned,  Foord  was  under  no  obligation  to  test  the 
truth  of  the  representation.  The  charge  of  the  judge  in  submitting 
to  the  jury  the  question  in  relation  to  the  negligence  of  Foord  and 
Aspinwall  cannot  be  complained  of  by  the  defendant. 

GARDINER,  J.,  concurred  in  affirming  the  judgment,  on  the 
ground  that  selling  the  belladonna,  without  a  label  indicating  that 
it  was  a  poison,  was  declared  a  misdemeanor  by  statute  (2  Rev.  St. 
p.  694,  §  25),  but  expressed  no  opinion  upon  the  question  whether,  in- 
dependent of  the  statute,  the  defendant  would  have  been  liable  to  these 
plaintiffs. 

GRIDLEY,  J.,  was  hot  present  when  the  cause  was  decided.  All 
the  other  members  of  the  court  concurred  in  the  opinion  delivered 
by  RUGGLES,  C.  J. 

Judgment  affirmed. 

(This  case  was  followed  in  Devlin  v.  Smith,  89  N.  T.  470,  42  Am.  Rep.  311, 
which  states  the  rule  as  follows:  "The  liability  of  a  builder  or  manufacturer 
is,  in  general,  only  to  the  person  with  whom  he  contracted.  But,  notwith- 
standing this  rule,  liability  to  third  parties  has  been  held  to  exist  when  the 
defect  is  such  as  to  render  the  article  imminently  dangerous,  and  serious  in- 
jury to  any  person  using  it  is  a  natural  and  probable  consequence  of  its  use." 
To  the  same  effect  are  Huset  v.  Case  Machine  Co.,  120  Fed.  865,  57  C.  C.  A. 
237,  61  L.  R.  A.  303,  citing  many  cases;  Norton  v.  Sewall,  106  Mass.  143,  8 
Am.  Rep.  298 ;  Bishop  v.  Weber,  139  Mass.  411,  1  N.  E.  154,  52  Am.  Rep.  715 ; 
Van  Winkle  v.  Amer.  Steam  Boiler  Co.,  52  N.  J.  Law,  240,  19  Atl.  472;  State 
v.  Fox,  79  Md.  514,  29  Atl.  601,  24  L.  R.  A.  679,  47  Am.  St.  Rep.  424;  Schubert 
v.  Clark  Co.,  49  Minn.  331,  51  N.  W.  1103,  15  L.  R.  A.  818,  32  Am.  St  Rep.  559; 
Peters  v.  Johnson,  50  W.  Va.  644,  41  S.  E.  190,  57  L.  R.  A,  428,  88  Am.  St.  Rep. 
909;  Davis  v.  Guarnieri,  45  Ohio  St.  470,  15  N.  E.  350,  4  Am.  St  Rep.  548; 
Bright  v.  Barnett  Co.,  88  Wis.  299,  60  N.  W.  418,  26  L.  R.  A.  524;  Lewis  v. 
Terry,  111  Cal.  39,  43  Pac.  398,  31  L.  R.  A.  220,  52  Am.  St  Rep.  146;  Ives  v. 


GENERAL   PRINCIPLES.  163 

Welden,  114  Iowa,  47G,  87  N.  W.  408,  54  L.  R.  A.  854,  89  Am.  St.  Rep.  379;  cf. 
Heaven  v.  Fender,  11  Q.  B.  D.  503;  Parry  v.  Smith,  L.  R.  4  C.  P.  D.  325;  Bick- 
ford  v.  Richards,  154  Mass.  103,  27  N.  E.  1014,  26  Am.  St  Rep.  224.) 


Liability  of  infants  for  torts. 

(17  Wis.  230.) 

HUCHTING  v.  ENGEL. 

(Supreme  Court  of  Wisconsin.     June  Term,  1863.) 

TRESPASS— LIABILITY  OF  INFANT. 

An  infant,  though  only  a  little  over  six  years  old,  is  liable  for  a  trespass 
committed  by  him  in  breaking  and  entering  the  premises  of  another,  and 
breaking  down  and  destroying  shrubbery  and  flowers,  but  only  compensa- 
tory damages  are  recoverable. 

Error  to  Circuit  Court,  Dane  County. 

Huchting  brought  an  action  before  a  justice  of  the  peace  against 
Moirtz  Engel  for  breaking  and  entering  the  plaintiff's  premises,  and 
breaking  down  and  destroying  his  shrubbery  and  flowers  therein 
standing  and  growing.  The  answer,  after  a  general  denial,  stated 
that,  if  the  defendant  ever  committed  the  alleged  trespass,  "he  did 
so  through  the  want  of  judgment  and  discretion,  being  an  infant  of 
about  six  years  of  age."  On  the  trial  before  the  justice  the  plaintiff 
proved  the  alleged  trespass  and  damages;  and  on  the  part  of  the 
defense  it  was  shown  that  the  defendant,  at  the  time  of  the  tres- 
pass, was  but  little  more  than  six  years  old.  A  motion  to  dismiss 
the  action,  on  the  ground  that  the  defendant  was  "of  such  tender 
years  that  a  suit  at  law  could  not  be  maintained  against  him,  nor 
execution  issued  on  a  judgment  against  him,"  was  overruled.  The 
justice  rendered  judgment  against  the  defendant  for  $3.00  damages, 
with  costs.  The  circuit  court,  on  appeal,  reversed  the  judgment, 
and  the  plaintiff  sued  out  his  writ  of  error. 

DIXON,  C.  J.  "Infants  are  liable  in  actions  arising  ex  delicto, 
whether  founded  on  positive  wrongs,  as  trespass  or  assault,  or  con- 
structive torts  or  frauds."  2.  Kent's  Com.  241. 

"Where  the  minor  has  committed  a  tort  with  force,  he  is  liable  at 
any  age,  for  in  case  of  civil  injuries  with  force  the  intention  is  not 
regarded ;  for  in  such  a  case  a  lunatic  is  as  liable  to  compensate  in 
damages  as  a  man  in  his  right  mind."  Reeve's  Dom.  Rei.  258. 

"The  privilege  of  infancy  is  purely  protective,  and  infants  are  liable 
to  actions  for  wrong  done  by  them ;  as  to  an  action  for  slander,  an 
action  of  trover  for  property  embezzled,  or  an  action  grounded  on 
fraud  committed."  Macpherson  on  Infants,  481  (41  Law  Lib.  305). 


164  LAW  OF  TORTS. 

"Infants  are  liable  for  torts  and  injuries  of  a  private  nature;  as 
disseisins,  trespass,  slander,  assault,  etc."  Bingham  on  Infancy, 
no. 

"All  the  cases  agree  that  trespass  lies  against  an  infant."  Hart- 
field  v.  Roper,  21  Wend.  620,  34  Am.  Dec.  273. 

This  is  the  language  of  a  few  of  the  many  writers  and  courts  who 
have  spoken  upon  the  subject.  All  agree,  and  all  are  supported  by 
the  authorities,  with  no  single  adjudged  case  to  the  contrary.  Jen- 
nings vs.  Randall,  8  Term,  335;  Sikes  v.  Johnson,  16  Mass.  389; 
Homer  v.  Thwing,  3  Pick.  492;  Campbell  v.  Stakes,  2  Wend.  137,  19 
Am.  Dec.  561 ;  Bullock  v.  Babcock,  3  Wend.  391 ;  Neal  v.  Gillett,  23 
Conn.  437;  Humphrey  v.  Douglass,  10  Vt.  71,  33  Am.  Dec.  177.  In 
the  latter  case  the  minor  was  held  answerable  for  a  trespass  commit- 
ted by  him,  although  he  acted  by  command  of  his  father. 

The  authorities  cited  by  the  counsel  for  the  defendant  in  error 
have  no  bearing  upon  the  question.  They  relate  to  the  criminal  re- 
sponsibility of  infants,  to  the  question  of  negligence  on  their  part, 
as  whether  it  can  be  imputed  to  them  so  as  to  defeat  actions  brought 
by  them  to  recover  damages  for  personal  injuries  sustained  in  part 
in  consequence  of  the  negligence  or  unskillfulness  of  others ;  and  to 
the  liability  of  parents  and  guardians  for  wrongs  committed  by  in- 
fants under  their  charge  by  reason  of  the  neglect  or  want  of  proper 
care  of  such  parents  or  guardians.  The  case  at  bar  is  none  of  these. 
The  defendant  is  not  prosecuted  criminally ;  the  action  is  not  by  him 
to  recover  damages  for  personal  injury  occasioned  by  the  joint  neg- 
ligence of  himself  or  his  parents  and  another;  nor  is  the  liability  of 
the  parents  involved.  The  suit  is  brought  to  recover  damages  for 
a  trespass  committed  by  him,  not  vindictive  or  punitory  damages, 
but  compensation,  and  for  that  he  is  clearly  liable.  If  damages  by 
way  of  punishment  were  demanded,  undoubtedly  his  extreme  youth 
and  consequent  want  of  discretion  would  be  a  good  answer. 

Judgment  of  the  circuit  reversed,  and  that  of  the  justice  of  the 
peace  affirmed. 

(To  the  same  effect  are  Peterson  v.  Haffner,  59  Ind.  130,  26  Am.  Rep.  81 
[action  for  assault  and  battery  committed  by  boy  13  years  old] ;  Conklin 
v.  Thompson,  29  Barb.  218  [boy  of  14  threw  lighted  firecracker  under  horse,  and 
it  exploded,  causing  the  horse's  death  from  fright] ;  Neal  v.  Gillett,  23  Conn. 
437  [negligence  by  boys  of  13  and  16] ;  Eaton  v.  Hill,  50  N.  H.  235,  9  Am.  Rep. 
189  [infant  bailee  of  a  horse  willfully  injuring  the  animal  so  that  it  dies] ; 
Lewis  v.  Littlefield,  15  Me.  233  [conversion  by  infant] ;  Walker  v.  Davis,  1 
Gray,  506  [conversion] ;  McCabe  v.  O'Connor,  4  App.  Div.  354,  38  N.  Y.  Supp, 
572,  affirmed  162  N.  Y.  600,  57  N.  E.  1116  [injury  by  fall  upon  plaintiff's  ad- 
jacent premises  of  dangerous  wall  standing  upon  infant's  land]). 


GENERAL  PRINCIPLES.  165 

(1  HUD,  578.) 
MOORE  v.  EASTMAN. 

(Supreme  Court  of  New  York,  General  Term,  Fourth  Department    June  Term, 

1874.) 

INFANT— TORT  CONNECTED  WITH  CONTRACT. 

To  render  an  infant,  who  has  hired  a  horse  to  drive,  liable  in  an  action 
of  tort  for  injury  to  the  animal,  he  must  do  some  willful  and  positive  act 
which  amounts  to  an  election  on  his  part  to  disaffirm  the  contract ;  a  bare 
neglect  to  protect  the  animal  from  injury  and  to  return  it  at  the  time 
agreed  upon  is  not  sufficient.'  If  he  willfully  and  intentionally  injure  the 
animal,  an  action  will  lie  against  him  for  the  tort,  but  not  if  the  injury 
complained  of  occur  in  the  act  of  driving  the  animal,  through  his  unskill- 
fulness,  and  want  of  knowledge,  discretion,  and  judgment 

Appeal  from  a  judgment  in  favor  of  the  defendant,  entered  upon 
the  verdict  of  a  jury. 

This  action  was  brought  to  recover  against  the  defendant  in  tres- 
pass for  an  injury  to  a  horse  of  the  plaintiff.  The  answer  denies  the 
complaint,  and  sets  up  a  contract  of  bailment  and  infancy.  Evidence 
was  given  on  the  part  of  the  plaintiff  to  show  that  he  let  the  horse 
to  the  defendant  for  two  days ;  that  the  horse  was  taken  sick  on  the 
journey,  and  that  such  sickness  was  occasioned  by  overdriving; 
that  the  defendant,  against  the  advice  of  the  doctor  and  hotel  keeper, 
drove  the  horse,  while  so  sick,  at  a  fast  gait;  and  that  shortly  after 
the  horse  reached  the  plaintiff's  stable  he  died  from  the  effects  of 
such  overdriving. 

GILBERT,  J.  The  complaint  avers  a  wrongful  taking  of  the 
horse  by  the  defendant,  and  that  in  consequence  of  his  malicious, 
wicked,  and  cruel  treatment  the  horse  died.  The  defense  is  infancy, 
and  that  at  the  time  the  alleged  wrongful  acts  were  committed  the 
horse  was  in  the  possession  of  the  defendant,  by  virtue  of  a  con- 
tract of  bailment  for  hire,  and  that  said  wrongful  acts  occurred 
solely  through  the  unskillfulness  and  want  of  judgment  of  the  defend- 
ant, and  not  from  any  intentional  or  malicious  or  willful  act  or  wrong 
on  his  part.  The  question  is,  what  proof  is  requisite  to  a  recovery 
upon  such  an  issue?  Acts,  however  aggravated,  which  merely  es- 
tablish a  breach  of  the  contract  on  the  part  of  an  infant,  manifestly 
are  insufficient.  The  plaintiff  cannot  convert  anything  that  arises 
out  of  a  contract  with  an  infant  into  a  tort,  and  then  seek  to  enforce 
the  contract  through  the  medium  of  an  action  ex  delicto.  There 
must  be  a  tort,  independent  of  the  contract.  The  authorities  all 
agree  on  this  principle.  In  Jennings  v.  Rundall,  8  T.  R.  335,  it  was 
held  that  when  a  boy  hired  a  horse,  and  injured  it  by  immoderate 
driving,  this  was  only  a  breach  of  contract,  for  which  he  was  not 
liable.  So,  in  Green  v.  Greenbank,  2  Marsh.  485,  the  court  of  com- 


166  LAW  OF  TORTS. 

mon  pleas,  in  England,  held  that  an  infant  was  not  liable  to  an  ac- 
tion for  falsely  and  fraudulently  deceiving  the  plaintiff  in  an  ex- 
change of  horses,  because  the  deceit  was  practiced  in  the  course  of 
the  contract.  The  principle  of  these  cases  was  unanimously  ap- 
proved by  the  late  court  for  the  correction  of  errors,  in  Campbell 
v.  Stakes,  2  Wend.  137,  19  Am.  Dec.  561,  which  was  an  action  of 
trespass  for  misusing  a  mare  hired  by  the  defendant,  who  was  an 
infant.  It  was  held  in  that  case  that  a  bare  neglect  to  protect  the 
animal  from  injury,  and  to  return  it  at  the  time  agreed  upon,  would 
not  subject  an  infant  to  an  action  of  trespass,  but  that  the  infant 
must  do  some  willful  and  positive  act,  which  amounts  to  an  election 
on  his  part  to  disaffirm  the  contract;  that  if  the  infant  willfully  and 
intentionally  injured  the  animal,  an  action  of  trespass  would  lie 
against  him  for  the  tort ;  but  that  if  the  injury  complained  of  occur- 
red in  the  act  of  driving  the  animal,  through  the  unskillfulness  and 
want  of  knowledge,  discretion,  and  judgment  of  the  infant,  he  would 
not  be  liable.  The  rule  thus  established  has  not  been  changed  in 
this  state,  to  my  knowledge,  but,  on  the  contrary,  has  been  repeat- 
edly recognized  and  approved.  The  People  v.  Kendall,  25  Wend. 
399,  37  Am.  Dec.  240;  Hunger  v.  Hess,  28  Barb.  75;  Robbins  v. 
Mount,  4  Rob.  553.  What,  then,  is  the  willful  and  positive  act  which 
amounts  to  an  election  to  disaffirm  the  contract?  Certainly,  such 
an  act  cannot  be  predicated  of  a  use  of  the  animal  in  the  course  of 
the  bailment,  however  excessive,  unless  the  excess  was  such  as  to 
indicate  that  it  was  resorted  to  for  a  purpose  beyond  that  for  which 
the  horse  was  hired.  Nothing  of  that  kind  appears  in  this  case. 
Instances  of  the  kind  of  wrong  that  will  make  an  infant  liable  are 
not  wanting  in  the  adjudged  cases.  Burnard  v.  Haggis,  14  C.  B.  (N. 
S.)  45,  where  an  infant  hired  a  mare  on  the  terms  that  it  was  to  be 
ridden  on  the  road,  and  not  over  fences  in  the  fields,  and  the  infant 
lent  it  to  a  friend,  who  took  it  off  the  highroad,  and,  in  endeavor- 
ing to  jump  the  animal  over  a  fence,  transfixed  it  on  a  stake  and 
killed  it;  Towne  v.  Wiley,  23  Vt.  355,  56  Am.  Dec.  85,  Homer  v. 
Thwing,  3  Pick.  492,  Lucas  v.  Trumbull,  1^5  Gray,  307,  and  Fish  v. 
Ferris,  5  Duer,  49,  where  the  infant  drove  the  horse  further  than-  the 
stipulated  journey,  or  on  a  different  one;  and  cases  where  an  infant 
obtains  goods  by  fraud,  and  then  refuses  to  deliver  them  up  on  the 
demand  of  the  party  who  has  been  defrauded,  or  where  he  has  been 
intrusted  with  them  for  a  special  purpose,  and  has  perverted  them 
to  another  purpose — may  be  taken  as  examples.  They  are  all  con- 
sistent with,  and  at  least  furnish  a  negative  confirmation  of,  the  prin- 
ciple before  alluded  to,  that  a  mere  violation  of  a  contract,  though 
attended  with  tortious  results,  will  not  make  the  infant  liable,  but 
that  to  have  that  effect  the  act  must  be  wholly  tortious. 

In  the  case  before  us,  taking  the  evidence  on  the  part  of  the  plain- 
tiff alone,  the  defendant  is  fairly  chargeable  with  only  two  or  three 


GENERAL  PRINCIPLES.  167 

acts  of  immoderate  driving  of  the  horse  while  performing  the  serv- 
ice for  which  he  was  hired,  and  with  driving  him  when  not  in  a  fit 
condition  to  continue  that  service.  There  was  no  other  basis  for  the 
inference  that  the  injury  to  the  horse  was  positive  or  willful. 

The  question  whether  the  injury  was  of  that  character,  or  was  the 
result  of  indiscretion,  or  want  of  skill  and  judgment  on  the  part  of 
the  defendant,  was  fairly  submitted  to  the  jury,  and  we  think  their 
verdict  was  correct. 

Several  requests  were  made  to  the  judge  to  modify  his  charge. 
One  of  them  was  that  if  the  jury  should  find  the  horse  was  over- 
driven, and  in  a  cruel  and  unusual  manner,  they  might  infer  the  in- 
tent from  such  cruel  driving.  This  was  properly  refused,  because 
there  was  no  evidence  of  such  cruelty.  The  other  requests,  though 
variant  in  form,  presented  merely  the  converse  of  the  propositions 
embraced  in  the  judge's  charge,  and,  of  course,  were  properly  re- 
fused. The  judgment  must  be  affirmed. 

Judgment  affirmed. 

(To  the  same  effect  is  Young  v.  Muhling,  48  App.  Div.  617,  63  N.  T.  Supp. 
181.) 


(175  Mass.  513,  56  N.  E.  574,  49  L.  R.  A.  560,  78  Am.  St  Rep.  510.) 

SLAYTON  v.  BARRY. 
(Supreme  Judicial  Court  of  Massachusetts.    Middlesex.    March  3,  1900.) 

INFANT— TOBT  CONNECTED  WITH  CONTRACT — FALSE  STATEMENT  AS  TO  AGE. 

Where  an  infant,  by  falsely  representing  himself  to  be  of  full  age,  in- 
duces another  to  sell  him  goods,  he  is  not  liable  in  an  action  of  tort  for  so 
obtaining  the  goods  any  more  than  he  would  be  in  an  action  on  contract 

Exceptions  from  Superior  Court,  Middlesex  County;  Caleb  Blod- 
gett,  Judge. 

Action  by  John  C.  F.  Slayton  against  Philip  A.  Barry.  From  a 
ruling  ordering  a  verdict  for  defendant,  plaintiff  excepts.  Excep- 
tions overruled. 

MORTON,  J.  The  declaration  in  this  case  is  in  two  counts.  The 
second  count  is  in  trover  for  the  goods  described  in  the  first  count. 
The  first  count  alleges,  in  substance,  that  the  defendant,  intending 
to  defraud  the  plaintiff,  deceitfully  and  fraudulently  represented  to 
him  that  he  was  of  full  age,  and  thereby  induced  the  plaintiff  to  sell 
and  deliver  to  him  the  goods  described,  and,  though  often  requested, 
had  refused  to  pay  for  or  return  the  goods,  but  had  delivered  them 
to  persons  unknown  to  the  plaintiff.  The  case  is  here  on  exceptions 
to  the  refusal  of  the  presiding  judge  to  give  certain  instructions  re- 
quested by  the  plaintiff,  and  to  his  ruling  ordering  a  verdict  for  the 


168  LAW  OF  TORTS. 

defendant.  The  question  is  whether  the  plaintiff  can  maintain  his 
action.  He  could  not  bring  an  action  of  contract,  and  so  has 
brought  an  action  of  tort.  The  precise  question  presented  has  never 
been  passed  upon  by  this  court.  Merriam  v.  Cunningham,  n  Cush. 
40,  43.  In  other  jurisdictions  it  has  been  decided  differently  by  dif- 
ferent courts.  We  think  that  the  weight  of  authority  is  against  the 
right  to  maintain  the  action.  Johnson  v.  Pie,  I  Lev.  169,  I  Sid. 
258,  i  Keb.  905 ;  Grove  v.  Nevill,  I  Keb.  778 ;  Jennings  v.  Rundall, 

8  Term  R.  335 ;  Green  v.  Greenbank,  2  Marsh.  485 ;  Price  v.  Hew- 
ett,  8  Exch.  146;  Wright  v.  Leonard,  n  C.  B.  (N.  S.)  258;  De  Roo 
v.  Foster,  12  C.  B.  (N.  S.)  272;  Gilson  v.  Spear,  38  Vt.  311,  88  Am. 
Dec.  659;  Nash  v.  Jewett,  61  Vt.  501,  18  Atl.  47,  4  L.  R.  A.  561,  15 
Am.  St.  Rep.  931 ;  Ferguson  v.  Bobo,  54  Miss.  121 ;  Brown  v.  Dun- 
ham, i  Root,  272;  Geer  v.  Hovey,  Id.  179;  Wilt  v.  Welsh,  6  Watts, 
9;  Burns  v.  Hill,  19  Ga.  22;  Kilgore  v.  Jordan,  17  Tex.  341;  Benj. 
Sales  (6th  Ed.)  23;  Cooley,  Torts  (2d  Ed.)  126;  2  Add.  Torts,  §  1314. 
See,  contra,  Fitts  v.  Hall,  9  N.  H.  441 ;  Eaton  v.  Hill,  50  N.  H.  235, 

9  Am.  Rep.  189;  Hall  v.  Butterfield,  59  N.  H.  354,  47  Am.  Rep.  209; 
Rice  v.  Boyer,  108  Ind.  472,  9  N.  E.  420,  58  Am.  Rep.  53 ;  Wallace  v. 
Morss,  5  Hill,  391. 

The  general  rule  is,  of  course,  that  infants  are  liable  for  their 
torts.  Sikes  v.  Johnson,  16  Mass.  389;  Homer  v.  Thwing,  3  Pick. 
492;  Shaw  v.  Coffin,  58  Me.  254,  4  Am.  Rep.  290;  Vasse  v.  Smith, 
6  Cranch,  226,  3  L.  Ed.  207.  But  the  rule  is  not  an  unlimited  one. 
It  is  to  be  applied  with  due  regard  to  the  other  equally  well  settled 
rule,  that,  with  certain  exceptions,  they  are  not  liable  on  their  con- 
tracts; and  the  dominant  consideration  is  not  that  of  liability  for 
their  torts,  but  of  protection  from  their  contracts.  The  true  rule 
seems  to  us  to  be  as  stated  in  Association  v.  Fairhurst,  9  Exch.  422, 
429,  where  it  was  sought  to  hold  a  married  woman  for  a  fraudulent 
misrepresentation,  namely:  If  the  fraud  "is  directly  connected  with 
the  contract,  *  *  *  and  is  the  means  of  effecting  it,  and  parcel 
of  the  same  transaction,"  then  the  infant  will  not  be  liable  in  tort. 
The  rule  is  stated  in  2  Kent,  Comm.  (8th  Ed.)  §  241,  as  follows: 
"The  fraudulent  act,  to  charge  him  [the  infant],  must  be  wholly 
tortious;  and  a  matter  arising  ex  contractu,  though  injected  with 
fraud,  cannot  be  changed  into  a  tort  in  order  to  charge  the  infant  in 
trover  or  case  by  a  change  in  the  form  of  the  action."  In  the  pres- 
ent case  it  seems  to  us  that  the  fraud  on  which  the  plaintiff  relies  was 
part  and  parcel  of  the  contract,  r.nd  directly  connected  with  it.  The 
plaintiff  cannot  maintain  his  action  without  showing  that  there  was 
a  contract,  which  he  was  induced  to  enter  into  by  the  defendant's 
fraudulent  representations  in  regard  to  his  capacity  to  contract,  and 
that  pursuant  to  that  contract  there  was  a  sale  and  delivery  of  the 
goods  in  question.  Whether,  as  an  original  proposition,  it  would 
be  better  if  the  rule  were  as  laid  down  in  Fitts  v.  Hall,  supra,  and 


GENERAL  PRINCIPLES.  169 

Hall  v.  Butterfield,  supra,  in  New  Hampshire,  and  Rice  v.  Boyer, 
>upra,  in  Indiana,  we  need  not  consider.  The  plaintiff  relies  on 
Homer  v.  Thwing,  supra;  Badger  v.  Phinney,  15  Mass.  359,  8  Am. 
Dec.  105,  and  Walker  v.  Davis,  I  Gray,  506.  In  Walker  v.  Davis, 
supra,  there  was  no  completed  contract,  and  the  title  did  not  pass. 
The  sale  of  the  cow  by  the  defendant  operated,  therefore,  clearly,  as 
a  conversion.  Badger  v.  Phinney,  supra,  was  an  action  of  replevin ; 
and  it  was  held  that  the  property  had  not  passed,  or  if  it  had,  that 
it  •  had  revested  in  the  plaintiff  in  consequence  of  the  defendant's 
fraud.  The  plaintiff  maintained  his  action  independently  of  the  con- 
tract. In  Homer  v.  Thwing,  supra,  the  tort  was  only  incidentally 
connected  with  the  contract  of  hiring.  We  think  that  the  exceptions 
should  be  overruled.  So  ordered. 

(See  Hewitt  v.  Warren,  10  Hun,  560;  N.  T.  Bldg.  Loan  Banking  Co.  v.  Fisher, 
23  App.  Div.  363,  48  N.  Y.  Supp.  152.  As  to  the  liability  of  married  women 
for  fraud  connected  with  contract,  see  Cooley  on  Torts  [2d  Ed.]  133,  134;  for 
their  torts  generally,  Id.  131,  132,  135.  The  common-law  rules  in  regard  to 
married  women  have  been  much  changed  by  modern  statutes,  making  them  lia- 
ble for  their  torts  pretty  much  as  single  women  are.) 


Co-tort-feasors;  how  sued. 

(90  Hun,  588,  35  N.  Y.  Supp.  975.) 
KIRBY  v.  PRESIDENT,  ETC.,  OF  DELAWARE  &  H.  CANAL  CO.  et  al. 

(Supreme  Court  of  New  York,  General  Term,  Third  Department    December  3, 

1895.) 

JOINT  WBONQDOEBS— How  SUED. 

In  an  action  for  negligence,  the  liability  being  joint  and  several,  plain- 
tiff may  proceed  against  any  one,  all,  or  such  number  of  wrongdoers  as 
he  may  choose,  and  where  two  or  more  are  sued  together,  the  jury  may 
find  in  favor  of  one  defendant  and  against  the  others. 

Appeal  from  Circuit  Court,  Rensselaer  County. 

Action  by  Sarah  Kirby  against  the  president,  managers,  and  com- 
pany of  the  Delaware  &  Hudson  Canal  Company  and  Dell  Brown 
for  personal  injuries  received  in  consequence  of  the  explosion  of  a 
hot-water  heating  apparatus  in. an  hotel  of  which  defendant  Brown 
was  owner  and  proprietor,  and  in  which  defendant  railroad  company, 
by  permission  of  defendant  Brown,  had  a  ticket  office;  plaintiff  be- 
ing at  the  time  of  the  accident  in  the  sitting  room  of  the  hotel,  which 
was  from  time  to  time  used  by  ladies  waiting  for  trains ;  she  having 
gone  there  after  taking  a  meal  at  the  hotel,  to  wait  for  defendant's 
train,  on  which  she  was  to  proceed  on  her  trip.  From  a  judgment 
for  plaintiff,  and  an  order  denying  a  new  trial,  defendants  appeal. 
Reversed. 


170  LAW  OF  TORTS. 

Argued  before  MAYHAM,  P.  T-,  and  PUTNAM  and  HERRICK, 
JJ- 

HERRICK,  J.  The  action  against  the  defendant  is  one  founded 
upon  alleged  negligence.  In  such  cases  the  plaintiff  may  proceed 
against  any  one,  all,  or  such  number  of  the  wrongdoers  as  he  may 
choose.  Roberts  v.  Johnson,  58  N.  Y.  613.  The  liability  is  a  joint 
and  several  liability.  Kain  v.  Smith,  80  N.  Y.  458-468.  In  action 
of  tort,  where  two  or  more  are  sued  together,  a  jury  may  find  in 
favor  of  one  defendant  and  against  the  other.  Lansing  v.  Montgomery, 
2  Johns.  382;  Drake  v.  Barrymore,  14  Johns.  166;  Lockwood  v. 
Bull,  i  Cow.  322,  13  Am.  Dec.  539;  Beal  v.  Finch,  n  N.  Y.  128-134. 
In  this  case  the  legal  relations  between  the  plaintiff  and  the  defendant 
Brown,  and  between  the  plaintiff  and  the  defendant  railroad  com- 
pany, were  different ;  and  it  seems  to  me,  therefore,  that  this  is  pecul- 
iarly a  case  where  the  above-cited  rules  are  applicable,  and  where  it 
might  well  be  held  that  the  jury  had  the  power,  if  they  thought  the  evi- 
dence justified  them,  in  holding  one  defendant  responsible  and  the 
other  not.  Upon  the  trial,  in  charging  the  jury,  the  court  said,  "I 
think  they  cannot  find  against  one  and  in  favor  of  the  other,  under 
the  testimony  in  this  case,"  to  which  exception  was  taken.  That,  I 
think,  was  error,  sufficient  to  call  for  a  reversal  of  the  judgment. 
That  being  so,  there  is  no  occasion  at  this  time  to  examine  the  other 
questions  argued  upon  this  appeal. 

The  judgment  and  order  appealed  from  should  be  reversed,  and  a 
new  trial  granted ;  costs  to  abide  the  event.  All  concur. 

(To  the  same  effect  are  Atlantic  &  P.  R.  Co.  v.  Laird,  164  U.  S.  393,  17  Sup. 
Ct  120,  41  L.  Ed.  485;  Gudger  v.  Western  R.  Co.  [C.  C.]  21  Fed.  81;  Corey  v. 
Havener,  182  Mass.  250,  65  N.  E.  69;  Dyett  v.  Hyman,  129  N.  Y.  351.  29  N.  E. 
261,  26  Am.  St  Rep.  533;  Wabash,  St  L.  &  P.  R.  Co.  v.  Shacklet,  105  111.  364, 
44  Am.  Rep.  791.  The  same  rule  applies  to  partners  as  regards  torts  commit- 
ted in  the  course  of  the  partnership  business.  Wisconsin  Cent  R.  Co.  v.  Ross, 
142  111.  9,  31  N.  E.  412,  34  Am.  St  Rep.  49;  Roberts  v.  Johnson,  58  N.  Y.  613; 
Howe  v.  Shaw,  56  Me.  291.  Partners  are  liable  for  the  torts  of  one  of  them, 
though  done  without  the  knowledge  of  the  others,  if  done  for  the  benefit  of 
the  partnership  and  within  the  scope  of  its  business.  Lothrop  v.  Adams,  133 
Mass.  471,  481,  43  Am.  Rep.  528;  Strang  v.  Bradner,  114  U.  S.  555,  5  Sup.  Ct 
1038,  29  L.  Ed.  248;  Chester  v.  Dickerson,  54  N.  Y.  1,  13  Am.  Rep.  550.  , 

An  analogous  rule  is  thus  stated:  "While  it  is  true  that  persons  who  act 
separately  and  independently,  each  causing  a  separate  and  distinct  injury,  can- 
not be  sued  jointly,  even  though  the  injuries  may  have  been  precisely  similar 
in  character  and  inflicted  at  the  same  moment  [see  Howard  v.  Union  Traction 
Co.,  195  Pa.  391,  45  Atl.  1076],  yet  if  such  persons,  acting  independently,  by 
their  several  acts  directly  contribute  to  produce  a  single  injury,  each  being 
sufficient  to  have  caused  the  whole,  and  it  is  impossible  to  distinguish  the  por- 
tions of  injury  caused  by  each,  they  are  then  joint  tort-feasors,  and  may  be 
sued  either  jointly  or  severally,  at  the  election  of  the  plaintiff,  and  in  such  an 
action  against  one  or  more  the  whole  damage  may  be  recovered."  Allison  v. 
Hobbs,  96  Me.  26.  51  Atl.  245;  Boston  &  A.  R.  Co.  v.  Shanly,  107  Mass.  568; 
Newman  v.  Fowler,  37  N.  J.  Law.  89;  Economy  Light  Co.  v.  Hi  Her,  203  III 


GENERAL  PRINCIPLES.  171 

518,  G8  N.  E.  72;  Slater  v.  Mersereau,  64  N.  Y.  138;  cf.  Chipman  v.  Palmer, 
77  N.  Y.  51,  33  Am.  Rep.  56G.  But  where  the  dogs  of  different  persons  do  dam- 
age together,  each  owner  is  only  liable  for  the  mischief  done  by  his  own 
dog.  Nierenberg  v.  Wood,  59  N.  J.  Law,  112,  35  Atl.  654;  Auchmuty  v. 
Ham,  1  Denio,  495. 

It  Is  the  generally  accepted  rule  that  a  judgment  against  one  of  two  or 
more  co-tort-feasors  will  not  bar  an  action  against  another  of  them,  or 
against  the  others,  but  that  judgment  plus  satisfaction  will  operate  as  a 
bar.  Knapp  v.  Roche,  94  N.  Y.  329;  Luce  v.  Dexter,  135  Mass.  23;  Maple 
v.  Railroad  Co.,  40  Ohio  St.  313,  48  Am.  Rep.  685;  City  of  Roodhouse  v. 
Christian,  158  111.  137,  41  N.  E.  748;  Westbrook  v.  Mize,  35  Kan.  299,  10 
Pac.  881.  If  several  actions  are  brought,  the  plaintiff  may  recover  costs  In 
all  the  actions.  Lord  ?.  Tiffany,  98  N.  Y.  412,  50  Am.  Rep.  689.) 


The  same:   damages  not  apportioned  among  the  co-tort- 
feasors. 

(14  R.  I.  175.) 

KEEGAN  v.  HAYDEN  et  al. 
(Supreme  Court  of  Rhode  Island.    May  31,  1883.) 

JOINT  TRESPASSERS— APPORTIONMENT  OF  DAMAGES. 

On  a  verdict  for  plaintiff,  in  an  action  for  assault  and  battery  and  false 
imprisonment  against  several  defendants,  the  damages  are  properly  as- 
sessed jointly  against  all,  without  discrimination  between  the  defendants. 

.Petition  for  a  new  trial. 

Action  of  trespass  by  Lawrence  Keegan  against  William  F.  Hay- 
den  and  others.  The  jury  found  a  verdict  against  all  the  defendants 
Defendants  petitioned  for  a  new  trial. 

DURFEE,  C.  J.  This  is  a  petition  for  the  new  trial  of  an  action 
of  trespass  against  three  several  defendants  for  assault  and  battery 
and  false  imprisonment.  The  defendants  pleaded  jointly — First,  the 
general  issue;  and,  second,  a  special  plea  in  justification  that  they 
were  police  constables  of  the  city  of  Providence,  and  as  such  arrested 
the  plaintiff  for  intoxication  in  the  public  streets  of  said  city,  and  de- 
tained him  for  trial,  the  said  arrest  and  detention  being  the  trespasses 
complained  of.  The  jury  on  trial  returned  a  verdict  for  the  plaintiff 
against  them  all  jointly  for  $500.  One  of  the  grounds  assigned  for 
new  trial  is  that  the  jury  did  not  discriminate  between  the  defendants, 
but  assessed  them  all  jointly  for  the  full  amount  of  the  damages. 
We  do  not  find  any  error  in  this.  The  rule  is  that,  in  an  action  of 
tort  against  several  who  are  jointly  charged,  the  verdict  ought  to  be 
rendered  against  all  who  are  proved  guilty  as  charged,  without  any 
apportionment  of  the  damages,  each  and  all  of  them  being  alike  liable 
for  the  wrong  to  the  fullest  extent,  in  whatever  different  degrees  they 


172  LAW  OF  TORTS. 

may  have  contributed  to  it.  Hill  v.  Goodchild,  5  Burrows,  2790; 
Hume  v.  Oldacre,  I  Starkie,  351 ;  Berry  v.  Fletcher,  I  Dill.  67,  71, 
Fed.  Cas.  No.  1,357;  Sprague  v.  Kneeland,  12  Wend.  161 ;  Halsey  v. 
Woodruff,  9  Pick.  555;  Fuller  v.  Chamberlain,  n  Mete.  (Mass.)  503; 
Currier  v.  Swan,  63  Me.  323;  Clark  v.  Bales,  15  Ark.  452;  Hair  v. 
Little,  28  Ala.  236;  Bell  v.  Morrison,  27  Miss.  68;  Beal  v.  Finch,  II 
N.  Y.  128. 

The  defendants  also  ask  for  a  new  trial  because  the  verdict  is 
against  the  evidence,  and  the  weight  thereof,  and  because  the  dam- 
ages are  excessive.  The  evidence  is  conflicting,  but  we  are  not  pre- 
pared to  set  the  verdict  aside  for  the  first  of  these  two  reasons.  We 
think,  however,  that  the  damages  are  excessive,  for,  according  to  the 
evidence,  the  peace  of  the  street  had  been  disturbed,  and  the  plaintiff, 
if  not  indecently  drunk,  had  been  drinking  enough  to  make  him  ex- 
citable and  abusive.  A  new  trial  will  therefore  be  granted,  unless 
the  verdict  is  reduced  to  $300. 

(Additional  authorities  are  Post  v.  Stockwell,  34  Hun,  373;  Huddleston  v. 
West  Bellevue,  111  Pa.  110,  2  Atl.  200 ;  Everroad  v.  Gabbert,  83  Ind.  489.) 


The  same:  in  general,  no  right  of  contribution  exists  be- 
tween co-tort-feasors;  exceptions. 

(28  Conn.  455.) 
BAILEY  v.  BUSSING  (in  part). 

0 

(Supreme  Court  of  Errors  of  Connecticut    October  Term,  1859.) 

1.  CONTRIBUTION — TORTS. 

The  rule  that  there  can  be  no  contribution  among  wrong-doers  applies 
properly  only  to  cases  where  there  has  been  an  intentional  violation  of 
law,  or  where  the  wrong-doer  is  to  be  presumed  to  have  known  that  the 
act  was  unlawful. 

2.  SAME. 

A  judgment  was  recovered  in  tort  against  three  defendants,  jointly  in- 
terested in  the  running  of  a  stage,  for  an  injury  caused  to  a  traveler  upon 
the  road  by  the  negligence  of  one  of  the  defendants,  who  was  driving. 
One  of  the  other  defendants  was  compelled  to  pay  the  whole  amount  of 
the  judgment,  and  brought  an  action  against  the  defendant  whose  negli- 
gence had  caused  the  injury  for  a  contribution.  Held,  that  he  was  clearly 
entitled  to  a  contribution,  if  not  to  a  full  indemnity. 

Action  by  George  F.  Bailey  and  another  in  assumpsit,  as  executors 
of  Aaron  Turner,  against  Thomas  Bussing  to  recover  one-third  of 
the  amount  of  a  judgment  recovered  against  Turner  and  the  defend- 
ant and  one  Whitlock  for  an  injury  by  the  negligent  management  of 
a  public  stage  on  the  highway,  in  the  running  of  which  all  the  defend- 


GENERAL  PRINCIPLES.  173 

ants  were  alleged  to  be  jointly  interested.  The  defendant  Bussing  was 
the  driver  of  the  stage,  and  the  injury  was  caused  by  his  negligence. 
Judgment  for  plaintiffs.  Defendant  moves  for  a  new  trial.  Denied. 

ELLSWORTH,  J.  This  is  an  action  of  assumpsit,  to  compel  a 
contribution  for  money  paid  on  a  judgment  against  three  defendants, 
Whitlock,  Aaron  Turner  the  plaintiffs'  testator,  and  Bussing  the  pres- 
ent defendant.  That  there  was  a  judgment  rendered  by  the  superior 
court  for  Fairfield  county  at  its  February  term  in  1852,  against  Whit- 
lock,  Turner  and  Bussing,  and  that  Turner  was  compelled  to  pay, 
and  did  pay,  on  the  execution,  the  whole  amount  of  the  judgment,  or 
such  a  sum  as  was  received  in  satisfaction  of  the  judgment,  is  admit- 
ted or  not  denied.  This  evidence,  it  is  said,  would  in  law  prima  facie 
entitle  the  plaintiffs  to  recover  one-third  of  the  sum  paid  from  the  de- 
fendant, and  that  there  must  be  such  recovery  unless  there  is  some- 
thing peculiar  to  the  present  case  which  saves  it  from  the  application 
of  the  principle  ordinarily  applicable  to  such  cases. 

If  this  judgment  had  been  recovered  on  a  joint  contract  or  joint 
liability  of  any  kind  sounding  in  contract,  the  production  of  the  judg- 
ment, and  proof  of  payment  by  Turner  of  the  whole  sum,  would  of 
course  show  a  good  cause  of  action  in  the  plaintiffs  for  the  recovery 
from  Bussing  of  one-third  the  amount  paid.  Is  there  anything  on 
this  record  which,  when  taken  in  connection  with  the  evidence  re- 
ceived in  the  case,  distinguishes  this  case  from  the  one  just  sup- 
p'osed  ? 

The  defendant  insists  that  that  judgment  was  rendered  in  an  action 
of  tort,  and  that  in  that  class  of  cases  there  is  to  be  no  contribution 
among  wrong-doers;  the  maxim  of  law  being,  as  he  claims,  that 
among  tort-feasors  there  is  no  contribution.  To  meet  this  objection, 
the  plaintiffs  offered  evidence,  and  we  think  with  entire  propriety,  to 
prove  that,  while  the  maxim  might  be  true  as  a  general  rule,  the  case 
on  trial  belonged  to  a  class  of  cases  to  which  it  had  no  application, 
for  that  here  there  was  no  personal  wrong,  not  even  negligence  in  a 
culpable  sense,  on  the  part  of  Turner,  and  that  he  had  been  found 
guilty  only  by  implication,  or  legal  inference  from  a  supposed  rela- 
tion to  Bussing,  the  actual  wrong-doer,  through  whose  neglect  the 
other  two  defendants  had  been  subjected  by  the  jury. 

No  objection  was  made  to  the  reception  of  the  evidence,  and  we 
think  none  could  properly  have  been  made.  The  court  received  it 
and  found  the  fact  to  be  as  claimed  by  the  plaintiffs,  that  Turner  was 
not  present,  and  had  no  participation  in  the  negligent  conduct  of  the 
driver  of  the  stage  which  caused  the  injury  to  Mrs.  Haight,  notwith- 
standing that,  under  the  particular  charge  of  the  court  in  that  case, 
the  jury  found  that  Turner  was,  in  a  legal  sense,  implicated  and  liable, 
even  though  there  was  not  any  actual  wrong  on  his  part. 

What  then  is  this  case?     And  what  is  the  true  doctrine  of  the  law 


174  LAW  OF  TORTS. 

as  to  contribution,  or,  as  it  may  be,  full  indemnity,  where  there  has 
been  no  illegal  act  or  conduct  on  the  part  of  him  who  seeks  for  a  con- 
tribution? 

The  reason  assigned  in  the  books  for  denying  contribution  among 
trespassers  is  that  no  right  of  action  can  be  based  on  a  violation  of 
law,  that  is,  where  the  act  is  known  to  be  such  or  is  apparently  of 
that  character.  A  guilty  trespasser  it  is  said  can  not  be  allowed  to  ap- 
peal to  the  law  for  an  indemnity,  for  he  has  placed  himself  without 
its  pale  by  contemning  it,  and  must  ask  in  vain  for  its  interposition  in 
his  behalf.  If  however  he  was  innocent  of  an  illegal  purpose,  igno- 
rant of  the  nature  of  the  act,  which  was  apparently  correct  and  prop- 
er, the  rule  will  change  with  its  reason,  and  he  may  then  have  an  in- 
demnity, or  as  the  case  may  be  a  contribution,  as  a  servant  yielding 
obedience  to  the  command  of  his  master,  or  an  agent  to  his  principal, 
in  what  appears  to  be  right,  an  assistant  rendering  aid  to  a  sheriff  in 
the  execution  of  process,  or  common  carriers,  to  whom  is  committed 
and  who  innocently  carry  away  property  which  has  been  stolen  from 
the  owner.  Indemnity,  or  contribution  to  the  full  amount,  is  allowa- 
ble here,  and  it  can  be  enforced  by  action  if  refused,  whether  the  per- 
son seeking  it  has  been  subjected  in  case  or  assumpsit  to  the  damages 
of  which  he  complains.  And  since  in  many  instances  the  person  in- 
jured has  an  election  to  sue  in  case  or  assumpsit,  it  is  not  possible 
that  the  form  of  action  in  which  the  party  seeking  for  indemnity  or 
contribution  has  been  subjected,  should  be  the  criterion  of  his  right 
to  call  for  it.  One  partner  or  one  joint  proprietor  may  do  that  which 
will  subject  all  the  rest  in  case  or  assumpsit,  as  the  fact  may  be,  but 
there  may  be  a  right  to  contribution  notwithstanding,  and  in  some 
cases,  if  indeed  the  present  is  not  one  of  them,  a  full  indemnity  may 
be  justly  demanded  from  the  person  doing  the  wrong,  by  the  other 
partners  whom  he  has  involved  in  loss  by  his  wrongful  act.  The 
form  of  action  then  is  not  the  criterion.  We  must  look  further.  We 
must  look  for  personal  participation,  personal  culpability,  personal 
.  knowledge.  If  we  do  not  find  these  circumstances,  but  perceive  only 
a  liability  in  the  eye  of  the  law,  growing  out  of  a  mere  relation  to  the 
perpetrator  of  the  wrong,  the  maxim  of  law  that  there  is  no  contribu- 
tion among  wrong  doers  is  not  to  be  applied.  Indeed  we  think  this 
maxim  too  much  broken  in  upon  at  this  day  to  be  called  with  pro- 
priety a  rule  of  law,  so  many  are  the  exceptions  to  it,  as  in  the  cases 
of  master  and  servant,  principal  and  agent,  partners,  joint  operators, 
carriers  and  the  like. 

One  of  the  earliest  cases  where  the  maxim  is  recognized  is  Merry- 
weather  v.  Nixan,  8  Term  R.  186,  where  the  plaintiff  was  the  active 
wrong  doer.  Having  paid  the  whole  damage,  he  sought  for  a  con- 
tribution. It  was  denied  him,  and  rightfully  so,  upon  the  strength 
of  the  maxim  referred  to.  But  even  here,  lest  a  wrong  inference 
should  be  drawn  from  the  decision,  Lord  Kenyon,  C.  J.,  says :  '  "This 


GENERAL  PRINCIPLES.  175 

decision  will  not  affect  cases  of  indemnity  where  one  man  employed 
another  to  do  an  act  not  unlawful  in  itself."  The  earlier  case  of  Phil- 
ips v.  Biggs,  Hardr.  164,  in  which  this  point  was  raised,  was  never 
decided.  In  Wooley  v.  Batte,  before  Justice  Park,  2  Car.  &  P.  417, 
one  stage  proprietor  had  been  sued  alone  in  case  for  an  injury  to  a 
passenger  through  the  neglect  of  the  coachman,  and,  having  paid  the 
damages,  he  brought  assumpsit  for  a  contribution,  and  recovered  on 
the  ground  that  in  him  there  was  no  personal  fault.  In  Adamson 
v.  Jarvis,  4  Bing.  66,  suit  was  brought  for  indemnity  by  an  auctioneer 
against  his  employer,  he  having  sold  goods  which  did  not  belong  to 
his  employer  and  for  which  he  had  been-  compelled  to  pay  upon  a 
judgment  recovered  against  him  by  the  owner,  being  himself  inno- 
cent. The  court  held  that  he  could  recover.  Best,  C.  J.,  said: 
"From  the  inclination  of  the  court  in  the  case  in  Hardres  and  from 
the  concluding  part  of  Lord  Kenyon's  judgment  in  Merryweather  v. 
Nixan,  and  from  reason,  justice  and  sound  policy,  the  rule  that  wrong 
doers  can  not  have  redress  or  contribution  against  each  other,  is  con- 
fined to  cases  where  the  person  seeking  redress  must  be  presumed 
to  have  known  that  he  was  doing  an  unlawful  act."  In  Betts  v.  Gib- 
bins,  2  Adol.  &  E.  57,  Lord  Denman,  C.  J.,  says :  "The  general  rule 
is,  that  between  wrong  doers  there  is  neither  indemnity  nor  contribu- 
tion. The  exception  is  where  the  act  is  not  clearly  illegal  in  itself. 
If  they  were  acting  bona  fide,  I  can  not  conceive  what  rule  there  can 
be  to  hinder  the  defendant  from  being  liable  for  the  risk."  Again, 
speaking  of  Battersey's  Case,  Winche,  48,  he  says  that  it  shows  that 
there  may  be  an  indemnity  between  wrong  doers,  unless  it  appears 
that  they  have  been  jointly  concerned  in  doing  what  the  party  com- 
plaining knew  to  be  illegal.  In  Story  on  Partnership  (section  220) 
the  learned  commentator  says,  speaking  of  the  maxim  that  there  is 
no  contribution  among  wrong  doers,  "but  the  rule  is  to  be  under- 
stood according  to  its  true  sense  and  meaning,  which  is  where  the 
tort  is  a  known,  meditated  wrong,  and  not  where  the  party  is  acting 
under  the  supposition  of  the  innocence  and  propriety  of  the  act,  and 
the  tort  is  one  by  construction  or  inference  of  law.  In  the  latter 
case,  although  not  in  the  former,  there  may  be  and  properly  is  a  con- 
tribution allowed  by  law  for  such  payments  and  expenses  between 
the  constructive  wrong  doers,  whether  partners  or  not."  The  cases 
are  all  brought  together  in  Chitty  on  Contracts  (page  502),  where  the 
author  most  fully  sustains  by  his  own  remarks  the  qualifications  of 
the  rule  laid  down  by  Lord  Denman.  I  will  here  leave  this  topic, 
only  repeating  my  remark  that  the  maxim  in  question  is  scarcely 
worthy  of  being  considered  a  general  rule  of  law,  for  it  is  applicable 
only  to  a  definite  class  of  cases,  and  to  that  class  the  case  before  us 
does  not  belong. 

We  conclude  therefore  that  the  objections  we  have  been  consider- 
ing ought  not  to  defeat  the  right  of  the  plaintiff  to  recover,  and  we 


176  LAW  OF  TORTS. 

do  not  advise  a  new  trial.  In  this  opinion  the  other  judges  con- 
curred. 

New  trial  not  advised. 

(To  the  same  effect  are  Armstrong  Co.  v.  Clarion  Co.,  66  Pa.  218,  5  Am.  Rep. 
3G8 ;  Nichols  v.  Nowling,  82  Ind.  488 ;  Herr  v.  Barber,  2  Macke'y,  545 ;  Golds- 
borough  v.  Darst,  9  111.  App.  205 ;  Gregg  v.  Page  Belting  Co.,  69  N.  H.  247,  46 
Atl.  26;  Vandiver  v.  Pollak,  97  Ala.  467,  12  South.  473,  19  L.  R.  A.  628.  In 
Palmer  v.  Wick,  etc.,  Shipping  Co.  [1894]  A.  C.  318,  it  is  said  that  the  doctrine 
of  Merryweather  v.  Nixan,  8  Term  R.  186,  ought  not  to  be  extended.  In  Kolb 
v.  National  Surety  Co.,  176  N.  Y.  233,  68  N.  E.  247,  it  is  said:  "The  general 
proposition  is  true  that  there  is  no  right  of  contribution  as  between  wrong- 
doers which  can  be  enforced,  for  a  court  of  equity  will  refuse  to  lend  its  aid 
to  those  who  have  been  guilty  of  illegal  conduct,  or  who  do  not  come  before 
it  with  clean  hands.") 


The  same:  indemnity  between  tort-feasors. 

(81  Hun,  147,  30  N.  T.  Supp.  686.) 
TRUSTEES  OF  VILLAGE  OF  CANANDAIGUA  v.  FOSTER  (In  part). 

(Supreme  Court  of  New  York,  General  Term.  Fifth  Department     October 

17,  1894.) 

TOBT-FEASOBS — WHEN  INDEMNITY  RECOVEBABLE. 

Where  a  vault,  covered  by  a  grating  in  the  sidewalk  above,  was  con- 
structed by  the  owner  of  abutting  premises  with  the  consent  of  the  village, 
and  he  afterwards  reconstructed  it  without  such  consent,  but  this  work 
was  done  improperly,  and,  by  reason  thereof,  the  grating  came  soon  after- 
wards to  be  in  an  unsafe  condition,  held,  that  the  village  might  recover 
from  him  the  amount  which  it  was  compelled  to  pay  in  an  action  against 
it  by  a  person  who  was  injured  by  the  defective  condition  of  the  sidewalk. 

Appeal  from  Circuit  Court,  Ontario  County. 

Action  by  the  trustees  of  the  village  of  Canandaigua  against  Wil- 
liam L.  Foster  to  recover  the  amount  of  a  judgment  recovered 
against  and  paid  by  said  village  in  an  action  by  one  McSherry  for  per- 
sonal injuries  sustained  by  falling  on  a  defective  sidewalk  in  front  of 
defendant's  premises.  From  an  order  denying  a  motion  for  a  new 
trial  on  the  minutes  of  the  court  after  verdict  in  favor  of  plaintiffs, 
defendant  appeals.  Affirmed.  * 

Argued  before  DWIGHT,  P.  J.,  and  LEWIS,  HAIGHT,  and 
BRADLEY,  JJ. 

DWIGHT,  P.  J.  One  McSherry,  in  1889,  brought  an  action 
against  the  village  of  Canandaigua  for  injuries  sustained  by  him  in 
falling  on  a  defective  sidewalk,  in  front  of  premises  of  defendant,  on 
one  of  the  streets  of  that  village.  The  plaintiffs  gave  the  defendant 
notice  to  defend  the  action,  and  he  undertook  to  do  so.  Judgment, 


GENERAL  PRINCIPLES.  177 

however,  went  against  the  village,  which  the  plaintiffs  paid,  and  now 
bring  their  action  over,  to  recover  of  the  defendant  the  amount  so 
paid.  The  defect  in  the  sidewalk  was  a  loose  grating,  covering  the 
opening  into  a  vault  beneath.  The  vault  was  excavated  and  the  grat- 
ing set  by  the  defendant  many  years  before,  with  the  acquiescence 
and  consent,  actual  or  implied,  of  the  village  authorities.  Babbage  v. 
Powers,  130  N.  Y.  281,  29  N.  E.  132,  14  L.  R.  A.  398.  It  was  there- 
fore out  of  the  question  that  the  plaintiffs  should  recover  over, 
against  the  defendant,  for  the  original  construction,  good  or  bad,  of 
the  vault  and  grating  (Trustees  of  Geneva  v.  Brush  Electric  Co.,  50 
Hun,  581,  3  N.  Y.  Supp.  595,  affirmed  130  N.  Y.  670,  29  N.  E.  1034); 
and  so  the  court  held  at  the  circuit.  But  the  defendant  reconstructed 
the  opening  and  reset  the  grating  in  the  summer  of  1888,  and  the  evi- 
dence pn  the  part  of  the  plaintiffs  tends  to  show  that  this  work  was 
done  in  an  improper  manner,  and  that,  in  consequence  of  it,  the  grat- 
ing soon  after  came  to  be  in  an  unsafe  condition,  and  that  the  acci- 
dent to  McSherry  resulted  therefrom.  This  evidence  presented  the 
main  question  which  was  submitted  to  the  jury,  and  properly  sub- 
mitted, as  we  think.  There  was  no  evidence  of  consent  on  the  part 
of  the  village  to  the  reconstruction,  nor  lapse  of  time  from  which  ac- 
quiescence should  be  inferred.  If,  therefore,  the  reconstructed  open- 
ing and  grating  were  a  nuisance,  the  defendant,  and  not  the  village, 
was  primarily  liable  for  injuries  to  third  persons  resulting  therefrom. 
As  we  had  occasion  to  say  in  the  case  of  Village  of  Geneva,  supra: 
"The  general  rule  which  denies  indemnity  or  contribution  to  joint 
wrongdoers  is  elementary.  The  cases  in  which  recovery  over  is  per- 
mitted in  favor  of  one  who  has  been  compelled  to  respond  to  the  par- 
ty injured  are  exceptions  to  the  general  rule,  and  are  based  upon 
principles  of  equity.  Such  exceptions  obtain  in  two  classes  of  cases : 
First,  where  the  party  claiming  indemnity  has  not  been  guilty  of  any 
fault  except  technically  or  constructively,  as  where  an  innocent  mas- 
ter is  held  to  respond  for  the  tort  of  his  servant,  acting  within  the 
scope  of  his  employment ;  or,  second,  where  both  parties  have  been  in 
fault,  but  not  in  the  same  fault,  towards  the  person  injured,  and  the 
fault  of  the  party  from  whom  indemnity  is  claimed  was  the  primary 
and  efficient  cause  of  the  injury." 

Illustrations  of  the  second  class  were  found  in  cases,  like  the  pres- 
ent, "of  recovery  against  municipalities  for  obstructions  to  the  high- 
ways caused  by  private  persons.  The  fault  of  the  latter  is  the  crea- 
tion of  the  nuisance ;  that  of  the  former,  the  failure  to  remove  it,  in 
the  exercise  of  its  duty  to  care  for  the  safety  of  the  public  streets. 
The  first  was  a  positive  tort,  and  the  efficient  cause  of  the  injury  com- 
plained of ;  the  latter,  the  negative  tort  of  neglect  to  act  upon  notice, 
express  or  implied."  The  cases  here  cited  of  Village  of  Port  Jervis 
v.  First  Nat.  Bank,  96  N.  Y.  550,  Village  of  Seneca  Falls  v.  Zalinski, 
8  Hun,  575,  and  City  of  Rochester  v.  Montgomery,  72  N.  Y.  65,  and 
CHASE  (2o  ED.) — 12 


178  LAW  OP  TORTS. 

many  others  of  like  character,  are  cases  of  the  second  class  above 
described ;  and  they  clearly  support  the  submission  of  this  case  to  the 
jury,  with  the  instruction,  in  effect,  that  if  they  should  find  that,  in 
the  reconstruction  of  the  grating,  the  defendant  did  the  work  improp- 
erly, and  in  such  a  manner  as  to  make  the  use  of  the  sidewalk  dan- 
gerous, and  that  the  accident  in  question  resulted  therefrom,  then 
the  plaintiffs  might  maintain  their  action  over  against  the  defendant. 
The  order  appealed  from  should  be  affirmed.  All  concur. 

(This  case  was  affirmed  on  other  grounds  in  156  N.  Y.  354,  50  N.  E.  971,  41 
L.  R.  A.  554,  66  Am.  St.  Rep.  575.  Upon  the  question  of  "indemnity,"  see, 
also,  Churchill  v.  Holt,  131  Mass.  67,  41  Am.  Rep.  191 ;  Minneapolis  Mill  Co. 
v.  Wheeler,  31  Minn.  121,  16  N.  W.  698 ;  Gridley  v.  Bloomington,  68  111.  47 ; 
Smith  v.  Foran,  43  Conn.  244,  21  Am.  Rep.  647  [master  recovering  indemnity 
from  servant] ;  Grand  Trunk  R.  Co.  v.  Latham,  63  Me.  177  [Id.] ;  Howe  v. 
Buffalo,  N.  Y.  &  E.  R.  Co.,  37  N.  Y.  297  [agent  recovering  indemnity  from 
principal].  In  Oceanic  Nav.  Co.  v.  Companla,  134  N.  Y.  461,  31  N.  E.  987,  30 
Am.  St  Rep.  685,  it  is  held  that  "one  who,  without  fault  on  his  own  part,  has 
been  held  legally  liable  for  the  negligence  of  another,  is  entitled  to  indemnity 
from  the  latter."  S.  P.,  Chicago  City  v.  Robbins,  2  Black,  418,  17  L.  Ed.  298. 
But  even  an  actual  agreement  or  bond  of  indemnity  will  not  be  enforceable 
in  favor  of  a  person  who  has,  in  reliance  upon  it,  committed  an  act  which  he 
knows  to  be  unlawful,  as  where  the  bond  is  given  to  a  sheriff  to  indemnify 
him  in  making  a  levy,  and  he  levies  upon  goods  which  he  knows  do  not  belong 
to  the  judgment  debtor ;  but  where  the  title  to  the  goods  is  matter  of  doubt 
or  controversy,  and  the  sheriff  acts  in  good  faith  upon  the  assurance  given  by 
the  creditor  that  he  may  properly  proceed  to  make  the  levy,  the  bond  is  en- 
forceable. Nelson  v.  Cook,  17  111.  443 ;  Stanton  v.  McMullen,  7  111.  App.  326 ; 
Griffiths  v.  Hardenbergh,  41  N.  Y.  464 ;  Prewitt  v.  Garrett,  6  Ala.  128,  41  Am. 
Dec.  40;  Collier's  Adm'r  v.  Windham,  27  Ala.  291,  62  Am.  Dec.  767;  Gower 
v.  Emery,  18  Me.  79 ;  S.  P.,  Avery  v.  Halsey,  14  Pick.  174 ;  Coventry  v.  Barton, 
17  Johns.  142,  8  Am.  Dec.  376.  On  like  grounds,  a  contract  of  indemnity,  given 
by  the  writer  of  a  libel  to  the  publisher  of  it,  is  void.  Atkins  v.  Johnson,  43  Vt 
78,  5  Am.  Rep.  260 ;  Shackell  v.  Rosier,  2  Bing.  N.  C.  634.) 


The  same:  effect  of  a  release. 

(45  MdL  60,  24  Am.  Rep.  504.) 

GUNTHER  v.  LEE  et  al. 
(Court  of  Appeals  of  Maryland.     June  15,  1876.) 

1.  JOINT  TOBT-FEASOBS— RELEASE— EFFECT. 

Where,  pending  a  suit  against  three  joint  tort-feasors,  a  release  was 
executed  to  one  of  them,  which,  in  consideration  of  $500,  released  her 
from  all  claims  for  the  wrong,  the  plaintiffs  thereby  acknowledging 
themselves  "to  be  fully  paid  and  satisfied  for  all  and  singular  the  tres- 
passes complained  of,"  the  release  discharged  all  the  joint  tort-feasors 
from  further  liability. 


GENERAL  PRINCIPLES.  179 

2.  SAME— PROVISO— VALIDITY. 

In  said  release,  which  expressed  the  consideration  on  Its  face  and  was 
received  in  full  satisfaction  of  the  wrong,  there  was  a  proviso  that  the 
right  to  recover  against  the  other  two  tort-feasors  should  not  be  affected. 
Held,  that  this  proviso  was  void  as  being  repugnant  to  the  legal  operation 
of  the  release  itself. 

Appeal  from  Circuit  Court,  Howard  County. 

Argued  before  BARTOL,  C.  J.,  and  BOWIE,  STEWART;  and 
ALVEY,  JJ. 

ALVEY,  J.  The  three  defendants  in  this  action  were  sued  as  joint 
tort-feasors,  and  the  single  question  presented  is  as  to  the  effect  and 
operation  of  the  release  executed  by  the  plaintiffs  to  one  of  the  de- 
fendants, Mrs.  Lee,  during  the  pendency  of  the  suit.  The  terms  of 
the  release  are  exceedingly  broad  and  comprehensive,  though  it  was 
declared  that  it  was  not  to  prejudice  or  impair  the  plaintiffs'  claim 
against  the  other  two  defendants.  The  release  was  executed  in  con- 
sideration of  five  hundred  dollars,  and  in  terms  released  and  dis- 
charged Mrs.  Lee  from  all  claims  of  every  description,  for  damages 
accruing  or  accrued  by  reason  of  the  wrongs  complained  of;  the 
plaintiffs  thereby  acknowledging  themselves  "to  be  fully  paid  and 
satisfied  for  all  and  singular  the  trespasses  complained  of"  by  them  in 
the  suit  then  pending  against  the  three  defendants  jointly.  The 
court  below  instructed  the  jury  that  the  release  inured  to  the  benefit 
of  all  the  defendants,  and  was  therefore  an  answer  to  the  action, 
which  instruction  we  think  was  properly  given. 

The  law,  as  settled  in  England,  is  that  a  judgment  in  an  action 
against  one  of  two  joint  tort-feasors,  of  itself,  without  satisfaction  or 
execution,  is  a  sufficient  bar  to  an  action  against  the  other  for  the 
same  cause.  The  leading  cases  upon  this  subject  are  Brown  v. 
Wootten,  Yelv.  67;  King  v.  Hoare,  13  M.  &  W.  494;  Brinsmead  v. 
Harrison,  L.  R.  6  C.  P.  584;  and  same  case  in  Ex.  Ch.  L.  R.  7  C.  P. 

547- 

This  rule,  however,  to  the  full  extent  stated,  is  not  generally  ac- 
cepted by  the  courts  in  this  country.  The  opinion  of  Kent,  C.  J.,  in 
Livingston  v.  Bishop,  I  Johns.  290,  3  Am.  Dec.  330,  has  been  most 
generally  adopted,  which  is  to  the  effect  that  a  recovery  against  one 
of  several  joint  tort-feasors  is  not  of  itself,  without  satisfaction,  a  bar 
to  the  right  to  recover  against  the  others,  but  fully  conceding  that 
satisfaction  received  of  one  is  a  complete  bar  to  recovery  against 
the  others.  The  principle  of  Livingston  v.  Bishop  has  been  fully 
sanctioned  by  the  Supreme  Court  of  the  United  States  in  the  case  of 
Lovejoy  v.  Murray,  3  Wall.  I,  18  L.  Ed.  129.  But,  without  determin- 
ing which  rule  we  should  be  disposed  to  adopt,  if  the  precise  ques- 
tion were  presented,  with  respect  to  the  question  presented  on  the 
record  before  us,  there  is  no  conflict  of  authority  whatever.  All  the 


180  LAW  OF  TORTS. 

cases,  both  English  and  American,  maintain  the  doctrine  that  sat- 
isfaction from  one  joint  tort-feasor,  whether  received  before  or  after 
recovery,  extinguishes  the  right  as  against  the  others.  The  plaintiff 
is  not  entitled  to  receive  more  than  one  satisfaction  for  and  in  re- 
spect of  the  same  injury.  As  was  said  by  the  court  in  Love  joy  v. 
Murray,  when  the  plaintiff  has  accepted  satisfaction  in  full  for  the  in- 
jury done  him,  from  whatever  source  it  may  come,  he  is  so  far 
affected,  in  equity  and  good  conscience,  that  the  law  will  not  permit 
him  to  recover  again  for  the  same  damages.  And  as  a  consideration 
is  always  implied  in  a  release  under  seal,  though  not  expressed  on  its 
face,  the  release  by  deed  of  one  joint  trespasser  will  discharge  all ; 
and  this  has  been  the  law  from  very  early  times.  Littleton,  §  376; 
Co.  Litt.  232 ;  Cocke  v.  Jennor,  Hob.  66 ;  7  Robinson's  Prac.  206-208, 
and  cases  there  referred  to ;  Ruble  v.  Turner,  2  Hen.  &  M.  38 ;  Gil- 
patrick  v.  Hunter,  24  Me.  18,  41  Am.  Dec.  370;  Thurman  v.  Wild,  n 
Ad.  &  El.  453.  Here  the  release  expresses  the  consideration  on  its 
face,  which  was  received  in  full  satisfaction  of  the  wrong  complained 
of.  The  proviso  in  the  release,  by  which  the  right  to  recover  for  the 
same  injury  against  the  other  two  defendants  was  attempted  to  be 
reserved  to  the  plaintiffs,  is  simply  void,  as  being  repugnant  to  the 
legal  effect  and  operation  of  the  release  itself.  Rubje  v.  Turner,  2 
Hen.  &  M.  38.  The  judgment  must  therefore  be  affirmed. 
•  Judgment  affirmed. 

(To  the  same  effect  are  Belong  v.  Curtis,  35  Hun,  94;  Barrett  v.  Third 
Ave.  R.  Co.,  45  N.  Y.  628;  Rogers  v.  Cox,  66  N.  J.  Law,  432,  50  Atl.  143; 
Ayer  v.  Ashmead,  31  Conn.  447,  83  Am.  Dec.  154;  Brown  v.  City  of  Cam- 
bridge, 3  Allen,  474;  Williams  v.  Le  Bar,  141  Pa.  149,  21  Atl.  525.  But  a 
"covenant  not  to  sue"  one  tort-feasor  does  not  operate  as  a  release  of  either 
the  covenantee  or  the  other  tort-feasors,  but  the  former  must  resort  to  his 
suit  for  breach  of  the  covenant,  and  the  latter  cannot  invoke  the  covenant 
as  a  bar  to  the  action  against  them.  City  of  Chicago  v.  Babcock,  143  111. 
358,  32  N.  E.  271 ;  cf.  Ellis  v.  Essau,  50  Wis.  138,  6  N.  W.  518,  36  Am.  Rep. 
830 ;  Tompkins  v.  Clay  St  R.  Co.,  66  Cal.  163,  4  Pac.  1165.  A  release  given 
to  one  tort-feasor,  but  containing  a  reservation  of  a  right  to  sue  the  others, 
has  been  held  to  be  in  effect  a  "covenant  not  to  sue"  the  one  released.  Gilbert 
v.  Finch,  173  N.  Y.  455,  66  N.  E.  133,  61  L.  R.  A.  807,  93  Am.  St  Rep.  623.) 


GENERAL  PRINCIPLES.  181 

Aiding  and  abetting  the  commission  of  a  tort;  ratification 
of  a  tort. 

(5  Ohio,  250.) 

BELL  v.  MILLER  (In  part). 
(Supreme  Court  of  Ohio.    December  Term,  1831.) 

TRESPASS— ASSAULT  AND  BATTERY— LIABILITY  OF  PARTIES  ADVISING  OB  AID- 
ING. 

A  party  advising  or  aiding  in  committing  a  trespass  is  liable,  though 
not  personally  present  at  the  time  of  committing  it. 

This  cause  was  adjourned  from  the  county  of  Champaign,  on  a 
motion  for  a  new  trial  made  by  the  defendant.  The  action  was  for 
an  assault  and  battery.  Verdict  for  the  plaintiff ;  damages,  sixty  dol- 
lars. This  reason  was  assigned  for  a  new  trial,  viz.,  that  the  court 
charged  the  jury  that  if  the  defendant  incited  or  in  any  degree  promoted 
the  commission  of  the  assault  and  battery  upon  the  plaintiff  he  was 
liable  in  this  action,  though  not  in  a  situation  to  afford  any  actual  aid 
to  the  person  who  committed  it. 

PER  CURIAM.  All  concerned  in  the  commission  of  a  trespass 
are  considered  principals.  An  assault  and  battery  may  be  committed 
by  a  party  not  present,  if  he  be  a  principal  actor  in  or  adviser  and 
promoter  of  making  the  attack.  If  one  person  employ  another  to 
commit  an  assault  and  battery  or  any  other  trespass,  and  the  act  is 
perpetrated,  both  are  guilty,  and  both  responsible  in  damages.  It 
was  not  supposed  that  this  was  now  a  debatable  question.  There  is 
no  error  in  the  charge  of  the  court. 

New  trial  refused. 

(In  Mack  v.  Kelsey,  61  Vt.  399,  17  Atl.  780,  it  is  said:  "The  rule  is  that 
all  who  aid,  advise,  command,  or  countenance  the  commission  of  a  tort  by 
another,  or  who  approve  of  it  after  it  is  done,  are  liable,  if  done  for 
their  benefit,  in  the  same  manner  as  if  they  had  done  the  act  with  their 
own  hands ;  and  proof  that  a  person  is  present  at  the  commission  of  a  tres- 
pass, without  disapproving  or  approving  it,  is  evidence  from  which,  in  con- 
nection with  other  circumstances,  it  is  competent  for  the  jury  to  infer  that 
he  assented  thereto,  lent  to  it  his  countenance,  and  approved  it,  and  was 
thereby  aiding  or  abetting  the  same."  To  the  same  effect  are  the  following 
cases:  Brown  v.  Perkins,  1  Allen,  89;  Cooney  v. 'Burke,  11  Neb.  258,  9 
N.  W.  57 ;  Sellman  v.  Wheeler,  95  Md.  751,  54  Atl.  512  [assault  and  battery] ; 
Heater  v.  Penrod  [Neb.]  89  N.  W.  7G2  [conversion] ;  Shaver  v.  Edgell,  48  W. 
Va.  502,  37  S.  E.  664  [trespass] ;  Rhinehart  v.  Whitehead,  64  Wis.  42,  24.  N. 
W.  401 ;  Grossbart  v.  Samuel,  65  N.  J.  Law,  543,  47  Atl.  501 ;  Southern  Exp. 
Co.  v.  Couch,  133  Ala.  285,  32  South.  167  [malicious  prosecution] ;  Allred  v. 
Bray,  41  Mo.  484,  97  Am.  Dec.  283;  Drake  v.  Kiely,  93  Pa.  492;  cf.  Miller 
7.  Fano,  134  Cal.  103,  66  Pac.  183.) 


182  LAW  OF  TORTS. 

(154  Mass.  830,  28  N.  B.  279,  13  L.  R.  A.  219,  26  Am.  St  Rep.  249.) 

DEMPSEY  v.   CHAMBERS  (in  part). 
(Supreme  Judicial  Court  of  Massachusetts.    Essex.     September  3,  1891.) 

RATIFICATION — TORT  OF  PERSON  ASSUMING  TO  ACT  AS  SERVANT. 

Plaintiff  ordered  coal  of  defendant,  which  a  third  person,  without  de- 
fendant's knowledge  or  authority,  undertook  to  deliver,  and  in  so  doing 
negligently  injured  plaintiff's  building.  Afterwards,  and  with  knowl- 
edge of  the  injury,  defendant  demanded  payment  for  the  coal.  Held, 
that  defendant  was  liable  for  the  injury,  since  such  demand  was  a  ratifi- 
cation of  the  acts  of  the  person  delivering  the  coal. 

Exceptions  from  Superior  Court,  Essex  County;  Charles  P. 
Thompson,  Judge. 

HOLMES,  J.  This  is  an  action  of  tort  to  recover  damages  tor 
the  breaking  of  a  plate-glass  window.  The  glass  was  broken  by  the 
negligence  of  one  McCullock  while  delivering  some  coal  which  had 
been  ordered  of  the  defendant  by  the  plaintiff.  It  is  found  as  a  fact 
that  McCullock  was  not  the  defendant's  servant  when  he  broke  the 
window,  but  that  the  "delivery  of  the  coal  by  [him]  was  ratified  by 
the  defendant,  and  that  such  ratification  made  McCullock  in  law  the 
agent  and  servant  of  the  defendant  in  the  delivery  of  the  coal."  On 
this  finding  the  court  ruled  "that  the  defendant,  by  his  ratification  of 
the  delivery  of  the  coal  by  McCullock,  became  responsible  for  his 
negligence  in  the  delivery  of  the  coal."  The  defendant  excepted  to 
this  ruling,  and  to  nothing  else.  Therefore  the  only  question  before 
us  is  as  to  the  correctness  of  the  ruling  just  stated. 

If  we  were  contriving  a  new  code  to-day  we  might  hesitate  to  say 
that  a  man  could  make  himself  a  party  to  a  bare  tort  in  any  case 
merely  by  assenting  to  it  after  it  had  been  committed.  But  we  are 
not  at  liberty  to  refuse  to  carry  out  to  its  consequences  any  principle 
which  we  believe  to  have  been  part  of  the  common  law  simply  be- 
cause the  grounds  of  policy  on  which  it  must  be  justified  seem  to  us 
to  be  hard  to  find,  and  probably  to  have  belonged  to  a  different  state 
of  society. 

The  earliest  instances  of  liability  by  way  of  ratification  in  the  Eng- 
lish law,  so  far  as  we  have  noticed,  were  where  a  man  retained  prop- 
erty acquired  through  the  wrongful  act  of  another.  Y.  B.  30  Edw. 
I.  128  (Roll's  Ed.);  38  Lib.  Ass.  223,  pi.  9;  S.  C.  38  Edw.  III.  18;  12 
Edw.  IV.  9,  pi.  23;  Plowd.  8  ad  fin.  27,  31.  See  Bract.  I58b,  1593, 
I7ib.  But  in  these  cases  the  defendant's  assent  was  treated  as  relat- 
ing back  to  the  original  act,  and  at  an  early  date  the  doctrine  of  re- 
lation was  carried  so  far  as  to  hold  that,  where  a  trespass  would  have 
been  justified  if  it  had  been  done  by  the  authority  by  which  it  pur- 
ported to  have  been  done,  a  subsequent  ratification  might  also  justify 


GENERAL  PRINCIPLES.  183 

it.  Y.  B.  7  Hen.  IV.  34,  pi.  I.  This  decision  is  qualified  in  Fitzh. 
Abr.  "Bayllye,"  pi.  4,  and  doubted  in  Brooke,  Abr.  "Trespass,"  pi.  86, 
'out  it  has  been  followed  and  approved  so  continuously  and  in  so 
many  later  cases  that  it  would  be  hard  to  deny  that  the  common  law 
was  as  there  stated  by  Chief  Justice  Gascoigne.  Godb.  109,  no,  pi. 
129;  2  Leon.  196,  pi.  246;  Hull  v.  Pickersgill,  I  Brod.  &  B.  282; 
Muskett  v.  Drummond,  10  Barn.  &  C.  153,  157;  Buron  v.  Denman, 
2  Exch.  167,  178;  Secretary  of  State  v.  Sahaba,  13  Moore,  P.  C.  22, 
86;  Cheetham  v.  Mayor,  etc.,  L.  R.  10  C.  P.  249;  Wiggins  v.  U.  S.,  3 
Ct.  Cl.  412. 

If  we  assume  that  an  alleged  principal,  by  adopting  an  act  which 
was  unlawful  when  done  can  make  it  lawful,  it  follows  that  he  adopts 
it  at  his  peril,  and  is  liable  if  it  should  turn  out  that  his  previous  com- 
mand would  not  have  justified  the  act.  It  never  has  been  doubted 
that  a  man's  subsequent  agreement  to  a  trespass  done  in  his  name 
and  for  his  benefit  amounts  to  a  command  so  far  as  to  make  him  an- 
swerable. The  ratihabitio  mandato  comparatur  of  the  Roman  law- 
yers and  the  earlier  cases  (D.  46,  3,  12,  §  4;  D.  43,  1 6,  i,  §  14;  Y.  B. 
30  Edw.  I.  128)  has  been  changed  to  the  dogma  aequiparatur  ever 
since  the  days  of  Lord  Coke,  4  Inst.  317.  See  Brooke,  Abr.  "Tres- 
pass," pi.  113,  Co.  Litt.  207a;  Wing.  Max.  124;  Com.  Dig.  "Tres- 
pass," C.  i ;  Railway  Co.  v.  Broom,  6  Exch.  314,  326,  327,  and  cases 
hereafter  cited. 

Doubts  have  been  expressed,  which  we  need  not  consider,  whether 
this  doctrine  applied  to  a  case  of  a  bare  personal  tort.  Adams  v. 
Freeman,  9  Johns.  117,  118;  Anderson  and  Warberton,  JJ.,  in  Bishop 
v.  Montague,  Cro.  Eliz.  824.  If  a  man  assaulted  another  in  the 
street  out  of  his  own  head,  it  would  seem  .rather  strong  to  say  that 
if  he  merely  called  himself  my  servant,  and  I  afterwards  assented, 
without  more,  our  mere  words  would  make  me  a  party  to  the  assault, 
although  in  such  cases  the  canon  law  excommunicated  the  principal 
if  the  assault  was  upon  a  clerk.  Sext.  Dec.  5,  n,  23.  Perhaps  the 
application  of  the  doctrine  would  be  avoided  on  the  ground  that  the 
facts  did  not  show  an  act  done  for  the  defendant's  benefit,  (Wilson  v. 
Barker,  I  Nev.  &  M.  409,  4  Barn.  &  Adol.  614;  Smith  v.  Lozo,  42 
Mich.  6,  3  N.  W.  227;)  as  in  other  cases  it  has  been  on  the  ground 
that  they  did  not  amount  to  such  a  ratification  as  was  necessary, 
(Tucker  v.  Jerris,  75  Me.  184;  Hyde  v.  Cooper,  26  Vt.  552.) 

But  the  language  generally  used  by  judges  and  text-writers,  and 
such  decisions  as  we  have  been  able  to  find,  is  broad  enough  to  cover 
a  case  like  the  present,  when  the  ratification  is  established.  Perley 
v.  Georgetown,  7  Gray,  464;  Bishop  v.  Montague,  Cro.  Eliz.  824; 
Sanderson  v.  Baker,  2  W.  Bl.  832,  3  Wils.  309;  Barker  v.  Braham, 
2  W.  Bl.  866,  868,  3  Wils.  368;  Badkin  v.  Powell,  Cowp.  476,  479; 
Wilson  v.  Tumman,  6  Man.  &  G.  236,  242;  Lewis  v.  Read,  13  Mees. 
&  W.  834;  Buron  v.  Denman,  2  Exch.  167,  188;  Bird  v.  Brown,  4 


184  LAW  OF  TORTS. 

Exch.  786,  799;  Railway  Co.  v.  Broom,  6  Exch.  314,  326,  327;  Roe 
v.  Railway  Co.,  7  Exch.  36,  42,  43 ;  Ancona  v.  Marks,  7  Hurl.  &  N. 
686,  695;  Condit  v.  Baldwin,  21  N.  Y.  219,  225,  78  Am.  Dec.  137; 
Exum  v.  Brister,  35  Miss.  391 ;  Railway  Co.  v.  Donahoe,  56  Tex. 
162;  Murray  v.  Lovejoy,  2  Cliff.  191,  195,  Fed.  Cas.  No.  9,963.  See 
Lovejoy  v.  Murray,  3  Wall.  I,  9,  18  L.  Ed.  129;  Story,  Ag.  §§  455, 

456. 

The  question  remains  whether  the  ratification  is  established.  As 
we  understand  the  bill  of  exceptions,  McCullock  took  on  himself  to 
deliver  the  defendant's  coal  for  his  benefit,  and  as  his  servant,  and  the 
defendant  afterwards  assented  to  McCullock's  assumption.  The  rat- 
ification was  not  directed  specifically  to  McCullock's  trespass,  and 
that  act  was  not  for  the  defendant's  benefit,  if  taken  by  itself,  but  it 
was  so  connected  with  McCullock's  employment  that  the  defendant 
would  have  been  liable  as  master  if  McCullock  really  had  been  his 
servant  when  delivering  the  coal.  We  have  found  hardly  anything 
in  the  books  dealing  with  the  precise  case,  but  we  are  of  opinion  that 
consistency  with  the  whole  course  of  authority  requires  us  to  hold 
that  the  defendant's  ratification  of  the  employment  established  the  re- 
lation of  master  and  servant  from  the  beginning,  with  all  its  inci- 
dents, including  the  anomalous  liability  for  his  negligent  acts.  See 
Coomes  v.  Houghton,  102  Mass.  211,  213,  214;  Cooley,  Torts,  128, 
129.  The  ratification  goes  to  the  relation,  and  establishes  it  ab  initio. 

Exceptions  overruled. 

(See,  also,  the  following  cases  in  support  of  this  doctrine:  Nims  v.  Mt. 
Hermon  School,  160  Mass.  177,  35  N.  E.  776,  22  L.  R.  A.  364,  39  Am.  St.  Rep. 
467 ;  Grund  v.  Van  Vleck,  69  111.  478 ;  Dunn  v.  Hartford  &  W.  Horse  R.  Co., 
43  Conn.  434 ;  Welsh  v.  Cochran,  63  N.  Y.  181,  184,  20  Am.  Rep.  519 ;  Brown 
v.  City  of  Webster  City,  115  Iowa,  511,  88  N.  W.  1070.) 


ASSAULT  AND  BATTERY.  185 


ASSAULT  AND  BATTERY. 


Nature  of  an  assault — Difference    between  a   civil   and   a 
criminal  assault. 

(78  Ala.  463,  56  Am.  Rep.  42.) 

CHAPMAN  v.  STATE. 
(Supreme  Court  of  Alabama.    December  Term,  1884.) 

ASSAULT — WHAT  CONSTITUTES. 

Presenting  an  unloaded  gun  at  one  who  supposes  it  to  be  loaded,  although 
within  the  distance  the  gun  would  carry  if  loaded,  is  not,  without  more, 
such  an  assault  as  can  be  punished  criminally,  although  it  may  sustain  a 
civil  suit  for  damages. 

Appeal  from  Circuit  Court,  Barbour  County. 

Indictment  for  assault  and  battery.  Defendant  was  convicted  of 
assault,  and  appealed  from  the  judgment. 

SOMERVILLE,  J.  The  defendant  was  indicted  for  an  assault 
and  batter)'  upon  the  person  of  one  McLeod,  and  was  convicted  of  a 
mere  assault.  The  present  conviction  can  be  sustained  only  on  the 
theory  that  it  was  an  assault  for  the  defendant  to  present  or  aim  an 
unloaded  gun  at  the  person  charged  to  be  assaulted,  in  such,  a  men- 
acing: manner  as  to  terrify  him,  and  within  such  distance  as  to  have 
been  dangerous  had  the  weapon  been  loaded  and  discharged.  On 
this  question,  the  adjudged  cases,  both  in  this  country  and  in  Eng- 
land, are  not  agreed,  and  a  like  difference  of  opinion  prevails  among 
the  most  learned  commentators  of  the  law.  We  have  had  occasion 
to  examine  these  authorities  with  some  care  on  more  occasions  than 
the  present,  and  we  are  of  the  opinion  that  the  better  view  is  that 
presenting  an  unloaded  gun  at  one  who  supposes  it  to  be  loaded,  al- 
though within  the  distance  the  gun  would  carry  if  loaded,  is  not, 
without  more,  such  an  assault  as  can  be  punished  criminally,  al- 
though it  may  sustain  a  civil  suit  for  damages.  The  conflict  of  au- 
thorities on  the  subject  is  greatly  attributable  to  a  failure  to  observe 
the  distinction  between  these  two  classes  of  cases.  A  civil  action 
would  rest  upon  the  invasion  of  a  person's  "right  to  live  in  society 
without  being  put  in  fear  of  personal  harm,"  and  can  often  be  sus- 
tained by  proof  of  a  negligent  act  resulting  in  unintentional  injury. 
Peterson  v.  Haffner,  59  Ind.  130,  26  Am.  Rep.  81 ;  Cooley,  Torts,  161. 
An  indictment  for  the  same  act  could  be  sustained  only  upon  satisfac- 
tory proof  of  criminal  intention  to  do  personal  harm  to  another  by 


186  LAW  OF  TORTS. 

violence.  State  v.  Davis,  23  N.  C.  125,  35  Am.  Dec.  735.  The  ap- 
proved definition  of  an  "assault"  involves  the  idea  of  an  inchoate  vio- 
lence to  the  person  of  another,  with  the  present  means  of  carrying 
the  intent  into  effect.  2  Greenl.  Ev.  §  82 ;  Rose.  Crim.  Ev.  (7th  Ed.) 
296;  People  v.  Lilley,  43  Mich.  521,  5  N.  W.  982.  Most  of  our  de- 
cisions recognize  the  old  view  of  the  text-books,  that  there  can  be  no 
criminal  assault  without  a  present  intention,  as  well  as  present  ability, 
of  using  some  violence  against  the  person  of  another.  I  Russ. 
Crimes,  (9th  Ed.)  1019;  State  v.  Blackwell,  9  Ala.  79;  Tarver  v.  State, 
43  Ala.  354.  In  Lawson  v.  State,  30  Ala.  14,  it  was  said  that,  "to 
constitute  an  assault,  there  must  be  the  commencement  of  an  act 
which,  if  not  prevented,  would  produce  a  battery."  The  case  of  Bal- 
kum  v.  State,  40  Ala.  671,  which  was  decided  by  a  divided  court, 
probably  does  not  harmonize  with  the  foregoing  decisions.  It  is 
true  that  some  of  the  modern  text-writers  define  an  assault  as  an  ap- 
parent attempt  by  violence  to  do  corporal  hurt  to  another,  thus  ig- 
noring entirely  all  question  of  any  criminal  intent  on  the  part  of  the 
perpetrator.  I  Whart.  Crim.  Ev.  §  603;  2  Bish.  Crim.  Law,  §  32. 
The  true  test  cannot  be  the  mere  tendency  of  an  act  to  produce  a 
breach  of  the  peace ;  for  opprobrious  language  has  this  tendency,  and 
no  words,  however  violent  or  abusive,  can,  at  common  law,  consti- 
tute an  assault.  It  is  unquestionably  true  that  an  apparent  attempt 
to  do  corporal  injury  to  another  may  often  justify  the  latter  in 
promptly  resorting  to  measures  of  self-defense.  But  this  is  not  be- 
cause such  apparent  attempt  is  itself  a  breach  of  the  peace,  for  it 
may  be  an  act  entirely  innocent.  It  is  rather  because  the  person  who 
supposes  himself  to  be  assaulted  has  a  right  to  act  upon  appearances, 
where  they  create  reasonable  grounds  from  which  to  apprehend  im- 
minent peril.  There  can  be  no  difference,  in  reason,  between  pre- 
senting an  unloaded  gun  at  an  antagonist  in  an  affray,  and  presenting 
a  walking  cane,  as  if  to  shoot,  provided  he  honestly  believes,  and 
from  the  circumstances  has  reasonable  ground  to  believe,  that  the 
cane  was  a  loaded  gun.  Each  act  is  a  mere  menace,  the  one  equally 
with  the  other ;  and  mere  menaces,  whether  by  words  or  acts,  without 
intent  or  ability  to  injure,  are  not  punishable  crimes,  although  they  may 
often  constitute  sufficient  ground  for  a  civil  action  for  damages.  The 
test,  moreover,  in  criminal  cases,  cannot  be  the  mere  fact  of  unlaw- 
fully putting  one  in  fear,  or  creating  alarm  in  the  mind ;  for  one  may 
obviously  be  assaulted,  although  in  complete  ignorance  of  the  fact 
and  therefore  entirely  free  from  alarm.  People  v.  Lilley,  43  Mich. 
525»  5  N.  W.  982.  And  one  may  be  put  in  fear  under  pretense  of 
begging,  as  in  Taplin's  Case,  occurring  during  the  riots  in  London, 
decided  in  1780,  and  reported  in  2  East,  P.  C.  712,  and  cited  in  many 
of  the  other  old  authorities.  These  views  are  sustained  by  the  spirit 
of  our  own  adjudged  cases,  cited  above,  as  well  as  by  the  following 
authorities,  which  are  directly  in  point:  2  Green,  Crim.  Law  Rep.. 


ASSAULT  AND  BATTERY.  187 

and  note  on  pages  271-275,  where  all  the  cases  are  fully  reviewed ;  2 
Add.  Torts,  (Wood's  Ed.  1881,)  §  788,  note,  pages  4-7;  Rose.  Crim. 
Ev.  (7th  Ed.)  296;  i  Russ.  Crimes,  (9th  Ed.)  1020;  Blake  v.  Barnard, 
9  Car.  &  P.  626;  Reg.  v.  James,  I  Car.  &  K.  530;  Robinson  v.  State, 
31  Tex.  170;  McKay  v.  State,  44  Tex.  43 ;  State  v.  Davis,  35  Am.  Dec. 
735.  The  opposite  view  is  sustained  by  the  following  authors  and 
adjudged  cases:  7  Bish.  Crim.  Law,  (7th  Ed.)  §  32;  I  Whart.  Crim. 
Law,  (Qth  Ed.)  §§  182,  603 ;  Reg.  v.  St.  George,  9  Car.  &  P.  483 ;  Com. 
v.  White,  no  Mass.  407;  State  v.  Shepard,  10  Iowa,  126;  State  v. 
Smith,  2  Humph.  457.  See,  also,  3  Greenl.  Ev.  (i4th  Ed.)  §  59,  note 
b;  I  Archb.  Crim.  Pr.  &  PI.  (Pom.  Ed.)  282,  283,  907;  State  v.  Bene- 
dict, n  Vt.  238,  34  Am.  Dec.  688;  State  v.  Neely,  74  N.  C.  425,  21 
Am.  Rep.  496.  The  rulings  of  the  court  were  opposed  to  these 
views,  and  the  judgment  must  therefore  be  reversed,  and  the  cause 
remanded. 

(Beach  v.  Hancock,  27  N.  H.  223,  59  Am.  Dec.  373.  holds  that  a  civil  action  will 
lie  for  aiming  an  unloaded  pistol  within  shooting  distance,  with  an  apparent 
purpose  of  firing.  Comm.  v.  White,  110  Mass.  407,  holds  such  an  act  to  be  also 
a  criminal  assault;  while  State  v.  Sears,  86  Mo.  169;  State  v.  Godfrey,  17 
Or.  300,  20  Pac.  625,  11  Am.  St.  Rep.  830— are  to  the  contrary.  See,  also, 
People  v.  Lilley,  43  Mich.  521,  5  N.  W.  982 ;  Bishop  r.  Ranney,  59  Vt  316,  7 
Atl.  820.) 


(3  Carr.  &  P.  373.) 

MORTIN  v.  SHOPPEE. 

(Court  of  King's  Bench.    October  27,  1828.) 

ASSAULT — WHAT  CONSTITUTES. 

Riding  after  a  person,  so  as  to  compel  him  to  run  to  shelter  to  avoid 
being  beaten,  is,  in  law,  an  assault 

Action  for  assault.  Plea,  the  general  issue.  The  plaintiff  was 
walking  along  a  footpath,  by  the  road-side,  at  Hillingdon,  and  the  de- 
fendant, who  was  on  horseback,  rode  after  him  at  a  quick  pace.  The 
plaintiff  ran  away,  and  got  into  his  own  garden,  when  the  defendant 
rode  up  to  the  garden  gate,  (the  plaintiff  then  being  in  the  garden 
about  three  yards  from  him,)  and,  shaking  his  whip,  said:  "Come 
out,  and  I  will  lick  you  before  your  own  servants." 

Mr.  Denman,  C.  S.,  for  defendant,  objected  that  this  did  not 
amount  to  an  assault. 

TENTERDEN,  C.  J.  If  the  defendant  rode  after  the  plaintiff,  so 
as  to  compel  him  to  run  into  his  garden  for  shelter,  to  avoid  being 
beaten,  that  is  in  law  an  assault. 

Verdict  for  the  plaintiff.     Damages,  403. 

(See,  also,  State  v.  Sims,  3  Strob.  137.) 


188  LAW  OF  TORTS. 

(4  Carr.  &  P.  349.) 

STEPHENS  v.  MYERS. 

(Court  of  Common  Pleas.    July  17,  1830.) 

ASSAULT— WHAT  CONSTITUTES. 

Advancing  in  a  threatening  attitude  and  with  intent  to  strike  another, 
so  that  the  blow  would  almost  immediately  reach  him,  is,  in  law,  an  as- 
sault by  the  person  advancing  with  such  intent,  although  he  is  stopped 
before  he  is  near  enough  to  the  other  to  strike  him. 

Action  for  assault.  The  declaration  stated  that  the  defendant 
threatened  and  attempted  to  assault  the  plaintiff.  Plea,  not  guilty. 
It  appeared  that  the  plaintiff  was  acting  as  chairman  at  a  parish  meet- 
ing, and  sat  at  the  head  of  a  table,  at  which  table  the  defendant  also 
sat;  there  being  about  six  or  seven  persons  between  him  and  the 
plaintiff.  The  defendant  having,  in  the  course  of  some  angry  discus- 
sion which  took  place,  been  very  vociferous,  and  interrupted  the  pro- 
ceedings of  the  meeting,  a  motion  was  made  that  he  should  be  turned 
out,  which  was  carried  by  a  very  large  majority.  Upon  this  the  de- 
fendant said  he  would  rather  pull  the  chairman  out  of  the  chair  than 
be  turned  out  of  the  room,  and  immediately  advanced,  with  his  fist 
clenched,  towards  the  chairman,  but  was  stopped  by  the  church-war- 
den, who  sat  next  but  one  to  the  chairman,  at  a  time  when  he  was 
not  near  enough  for  any  blow  he  might  have  meditated  to  have 
reached  the  chairman ;  but  the  witnesses  said  that  it  seemed  to  them 
that  he  was  advancing  with  an  intention  to  strike  the  chairman. 

Mr.  Spankie,  Serjt.,  for  the  defendant,  upon  this  evidence,  contend- 
ed that  no  assault  had  been  committed,  as  there  was  no  power  in  the 
defendant,  from  the  situation  of  the  parties,  to  execute  his  threat ; 
there  was  not  a  present  ability;  he  had  not  the  means  of  executing 
his  intention  at  the  time  he  was  stopped. 

TINDAL,  C.  J.,  in  his  summing  up,  said  it  is  not  every  threat, 
when  there  is  no  actual  personal  violence,  that  constitutes  an  assault ; 
there  must,  in  all  cases,  be  the  means  of  carrying  the  threat  into  ef- 
fect. The  question  I  shall  leave  to  you  will  be  whether  the  defend- 
ant was  advancing  at  the  time,  in  a  threatening  attitude,  to  strike  the 
chairman,  so  that  his  blow  would  almost  immediately  have  reached 
the  chairman,  if  he  had  not  been  stopped.  Then,  though  he  was  not 
near  enough  at  the  time  to  have  struck  him,  yet  if  he  was  advancing 
with  that  intent  I  think  it  amounts  to  an  assault  in  law.  If  he  was  so 
advancing  that,  within  a  second  or  two  of  time,  he  would  have 
reached  the  plaintiff,  it  seems  to  me  it  is  an  assault  in  law.  If  you 
think  he  was  not  advancing  to  strike  the  plaintiff,  then  only  can  you 
find  your  verdict  for  the  defendant;  otherwise  you  must  find  it  for 


ASSAULT  AND  BATTERY.  189 

the  plaintiff,  and  give  him  such  damages  as  you  think  the  nature  of 
the  case  requires. 

Verdict  for  the  plaintiff.     Damages,  is. 

(An  American  case  on  all  fours  with  this  is  State  v.  Vannoy,  65  N.  C.  532. 
For  a  good  definition  of  an  assault,  see  Hays  v.  People,  1  Hill,  351;  Bishop  v. 
Ranney,  59  Vt.  316,  7  Atl.  820;  State  v.  Home,  92  N.  C.  805,  53  Am.  Rep.  442; 
People  v.  Lilley,  43  Mich.  521,  5  N.  W.  982;  Johnson  v.  State,  35  Ala.  363. 
Words  alone,  however  threatening,  violent,  or  opprobrious,  will  not  constitute 
an  assault  Cooley  on  Torts  [2d  Ed.]  185,  note,  and  cases  cited.) 


Effect  of  accompanying  words  indicating  that  there  is  no 
intent  to  do  actual  violence. 

(23  N.  C.  375.) 

STATE  v.  CROW. 

(Supreme  Court  of  North  Carolina.     June  Term,  1841.) 

ASSAULT — WORDS  INDICATING  INTENT. 

At  the  trial  of  an  indictment  for  assault,  there  was  evidence  that  de 
fendant,  in  a  quarrel  with  another,  raised  a  whip  and  shook  it  at  him. 
saying  at  the  same  time,  "Were  you  not  an  old  man,  I  would  knock  you 
down;"  but  he  did  not  strike,  although  within  striking  distance,  and  not 
prevented  by  any  one.  Held,  that  the  jury  might  consider  such  words, 
if  used  by  defendant,  as  tending  to  qualify  his  acts;  and  that  if  at  the 
time  he  raised  his  whip  he  had  no  present  purpose  to  strike,  it  was  not, 
in  law,  an  assault. 

Appeal  from  Superior  Court,  Rutherford  County ;  Battle,  Judge. 

Indictment  against  Abraham  Crow  for  assault  on  William  Gray- 
son.  At  the  trial,  a  witness  testified  that  he  heard  some  words  be- 
tween the  parties,  and  then  saw  defendant  raise  his  whip,  and  shake 
it  at  Grayson,  and  heard  him  swear  that  he  had  a  great  mind  to  kill 
Grayson,  and  that  defendant  was  at  the  time  within  striking  distance 
of  Grayson,  but  did  not  strike  him,  although  no  one  interfered.  One 
or  two  others  testified  that  they  did  not  see  defendant  raise  the  whip, 
but  heard  him  say  to  Grayson,  "Were  you  not  an  old  man,  I  would 
knock  you  down."  On  behalf  of  defendant,  his  counsel  argued  that 
these  words,  accompanying  his  acts,  qualified  them,  and  showed  that 
he  had  no  intention  of  striking,  and  that  consequently  there  was  no 
such  offer  or  attempt  to  strike  as  would  constitute  an  assault.  The 
court  charged  the  jury  that,  even  though  such  words  were  used  by 
defendant  when  he  raised  his  whip  and  shook  it  at  Grayson,  yet  if  his 
conduct  was  such  as  would  induce  a  man  of  ordinary  firmness  to  sup- 
pose he  was  about  to  be  stricken,  and  to  strike  his  assailant  in  self- 
defense,  the  latter  would  be  guilty.  Otherwise  there  might  be  a 
fight,  and  the  peace  broken,  and  yet  neither  party  be  guilty.  And, 


1<JU  LAW  OF  TORTS. 

further,  that  otherwise  one  man  might  follow  another  all  over  the 
court-yard,  shaking  a  stick  over  his  head,  and  yet  not  be  guilty,  pro- 
vided he  took  care  to  declare,  while  he  was  doing  so,  that  "he  had  a 
great  mind  to  knock  him  down."  The  jury  found  defendant  guilty. 
A  motion  by  him  for  a  new  trial  was  denied  and  judgment  was  pro- 
nounced against  him.  From  the  judgment  he  appealed. 

The  Attorney  General,  for  the  State,  cited  Archb.  Crim.  PI.  347; 
Hawkins,  c.  52,  §  I. 

No  counsel  appeared  for  defendant. 

DANIEL,  J.  The  judge  charged  the  jury  "that  if  the  conduct  of 
the  defendant  was  such  as  would  induce  a  man  of  ordinary  firmness 
to  suppose  he  was  about  to  be  stricken,  and  to  strike  in  self-defense, 
the  defendant  would  by  such  conduct  be  guilty  of  an  assault."  We 
admit  that  such  conduct  would  be  strong  evidence  to  prove,  what  ev- 
ery person  who  relies  on  the  plea  of  son  assault  demesne  must  prove 
to  support  his  plea,  to-wit,  that  his  adversary  first  attempted  or  of- 
fered to  strike  him ;  but  it  is  not  conclusive  evidence  of  that  fact,  for 
if  it  can  be  collected,  notwithstanding  appearances  to  the  contrary, 
that  there  was  not  a  present  purpose  to  do  an  injury,  there  is  no  as- 
sault. State  v.  Davis,  23  N.  C.  127,  35  Am.  Dec.  735.  The  law 
makes  allowance  to  some  extent  for  the  angry  passions  and  infirmi- 
ties of  man.  It  seems  to  us  that  the  words  used  by  the  defendant, 
contemporaneously  with  the  act  of  raising  his  whip,  were  to  be  taken 
into  consideration,  as  tending  to  qualify  that  act,  and  show  that  he 
had  no  intention  to  strike.  The  defendant  did  not  strike,  although 
he  had  an  opportunity  to  do  so,  and  was  not  prevented  by  any  other 
person.  The  judge  should,  as  it  seems  to  us,  have  told  the  jury  that 
if,  at  the  time  he  raised  his  whip  and  made  use  of  the  words,  "Were 
you  not  an  old  man,  I  would  knock  you  down,"  the  defendant  had 
not  a  present  purpose  to  strike,  in  law  it  was  not  an  assault.  We 
again  repeat  what  was  said  in  Davis'  Case :  "It  is  difficult  to  draw 
the  precise  line  which  separates  violence  menaced  from  violence  be- 
gun to  be  executed,  for,  until  the  execution  of  it  be  begun,  there  can  be 
no  assault."  The  evils  which  the  judge  supposed  might  follow,  if  the 
law  was  different  from  what  he  stated  it  to  be,  can  always  be  obviated 
by  the  offending  party's  being  bound  to  his  good  behavior.  There 
must  be  a  new  trial. 

New  trial  awarded. 

(The  rule  is  the  same  In  civil  and  criminal  cases.  Tuberville  v.  Savage,  1 
Mod.  3;  Com.  v.  Eyre,  1  Serg.  &  R.  347.  Compare  State  v.  Hampton,  63  N. 
C.  13.) 


ASSAULT   AND   BATTIilU.  191 

Nature  of  a  battery. 

(6  Mod.  149.) 

COLE  v.  TURNER. 

(Court  of  King's  Bench.     Easter  Term,  1794.) 

ASSAULT  AND  BATTERY— WHAT  CONSTITUTES  A  BATTERY. 

To  touch  another  in  anger,  though  in  the  slightest  degree,  or  to  use  vio- 
lence against  another  to  rudely  force  a  passage,  is,  in  law,  a  battery. 

Before  HOLT,  C.  J.,  at  nisi  prius. 

HOLT,  C.  J.,  upon  evidence  in  trespass  for  assault  and  battery,  de- 
clared— First,  that  the  least  touching  of  another  in  anger  is  a  battery; 
secondly,  if  two  or  more  meet  in  a  narrow  passage,  and,  without  any 
violence  or  design  of  harm,  the  one  touches  the  other  gently,  it  will 
be  no  battery ;  thirdly,  if  any  of  them  use  violence  against  the  other, 
to  force  his  way  in  a  rude,  inordinate  manner,  it  will  be  a  battery,  or 
any  struggle  about  the  passage  to  that  degree  as  may  do  hurt  will  be 
a  battery. 

(Spitting  in  a  person's  face  has  been  held  to  be  a  battery.  Draper  v.  Baker, 
61  Wis.  450,  21  N.  W.  527,  50  Am.  Rep.  143.  And  so  of  holding  a  woman's 
arms  and  kissing  her  against  her  will.  Craker  v.  Chicago  &  N.  W.  R.  Co.,  36 
Wis.  657,  17  Am.  Rep.  504.) 


(88  Ala.  100,  7  South.  154.) 

ENGELHARDT  v.  STATE  (in  part). 

(Supreme  Court  of  Alabama.    January  15,  1890.) 

ASSAULT  AND  BATTERY — WHAT  CONSTITUTES  A  BATTERY. 

Defendant  approached  another,  holding  a  stick  raised,  within  striking 
distance,  as  if  to  strike  the  latter,  and,  when  prevented  by  the  act  of  the 
latter  in  wrenching  the  stick  from  him,  drew  a  pistol.  The  other  seized 
and  turned  aside  the  hand  holding  the  pistol  as  it  was  discharged,  and 
they  struggled  together,  until  defendant  fell  or  was  forced  to  the  ground, 
the  pistol  being  again  discharged  in  the  air  during  the  struggle.  Held, 
that  such  laying  hold  of  each  other's  persons  in  a  rude  and  hostile  man- 
ner constituted  a  battery,  and  that,  there  being  no  justification  therefor 
on  the  part  of  defendant,  he  was  guilty  of  an  assault  and  battery. 

Appeal  from  City  Court  of  Montgomery;  Thomas  Arrington, 
Judge. 

Indictment  against  John  Engelhardt  for  an  assault  on  W.  F.  Van- 
diver  with  intent  to  murder  him.  The  assault  was  committed  on  the 
sidewalk  in  front  of  the  defendant's  store,  in  the  city  of  Montgomery, 
where  Vandiver  was  standing  with  one  J.  Faunce.  Vandiver  testi- 


192  LAW  OP  TORTS. 

fied  that  the  defendant  passed  him  a  few  moments  before  the  assault 
and  came  back,  and  said  to  him,  "You  have  not  treated  me  right;" 
that  he  attempted  to  pass  into  his  store,  but  was  intercepted  by  the 
defendant,  who  "jumped  back  and  drew  his  pistol ;"  that  after  delib- 
eration, "thinking  that  there  was  no  fight  in  him,"  witness  commenced 
advancing  on  him,  having  in  his  hand  an  open  pen-knife,  with  which 
he  had  been  cleaning  his  finger  nails ;  that  the  defendant  fired  at  him, 
pointing  his  pistol  towards  him,  but  witness  clinched  him,  and  got 
control  of  the  pistol ;  that  the  pistol  was  again  discharged  during  the 
struggle  between  them,  but  he  succeeded  in  getting  the  defendant 
down,  and  held  him  down,  with  the  aid  of  Faunce.  Faunce  testified, 
on  the  part  of  the  prosecution,  that  the  defendant,  when  he  approach- 
ed Vandiver.  had  a  small  cane  in  his  hand,  which  he  raised  when  within 
striking  distance,  but  Vandiver  wrenched  it  from  his  hand ;  that  the 
defendant  then  drew  his  pistol,  which  was  self-cocking,  and  Vandiver 
caught  his  right  hand,  and  turned  the  pistol  aside  as  it  was  discharged, 
the  ball  striking  the  ground;  and  that  the  weapon  was  again  dis- 
charged during  the  struggle  between  them,  or  as  the  defendant  was 
falling.  The  court  charged  the  jury  that,  "if  they  believe  the  evi- 
dence, the  defendant  was  guilty  of  an  assault,  or  an  assault  and  bat- 
tery." The  defendant  excepted  to  this  charge.  The  jury  found  de- 
fendant guilty  of  assault  and  battery,  and  he  was  fined  $300.  De- 
fendant appealed  from  the  judgment  of  conviction. 

SOMERVILLE,  J.  I.  The  court,  in  our  opinion,  committed  no 
error  in  charging  the  jury  that,  if  they  believed  the  evidence,  the  de- 
fendant was  guilty  of  assault,  or  assault  and  battery.  There  was  un- 
doubtedly an  attempt  or  offer,  on  the  defendants'  part,  with  force  and 
violence,  to  do  a  corporal  hurt  to  the  prosecutor, — an  attempt  mani- 
fested both  by  aiming  and  firing  a  loaded  pistol  in  the  direction  of  his 
person,  and  by  raising  a  stick,  within  striking  distance,  as  if  to  strike 
him,  which  was  prevented  by  his  wrenching  the  stick  from  the  de- 
fendant's hand.  This  was  clearly  an  assault,  constituting,  as  it  did, 
one  or  more  acts,  either  of  which,  if  consummated,  would  have  re- 
sulted in  a  battery.  Chapman  v.  State,  78  Ala.  463,  56  Am.  Rep.  42, 
ante,  p.  185. 

2.  The  evidence,  moreover,  shows  a  battery,  which  is  "the  unlaw- 
ful application  of  violence  to  the  person  of  another."  May,  Crim. 
Law,  §  55 ;  Com.  v.  McKie,  61  Am.  Dec.  410.  "A  battery  is  not  nec- 
essarily a  forcible  striking  with  the  hand  or  stick,  or  the  like,  but  in- 
cludes every  touching  or  laying  hold  (however  trifling)  of  another's 
person  or  his  clothes,  in  an  angry,  revengeful,  rude,  insolent,  or  hostile 
manner."  i  Amer.  &  Eng.  Enc.  Law,  783.  There  is  no  conflict  in 
that  part  of  the  evidence  showing  the  circumstances  attending  the 
difficulty.  To  prevent  being  shot  by  the  pistol,  the  prosecutor,  Van- 
diver,  seized  the  defendant's  right  hand,  which  contained  the  weapon, 


ASSAULT  AND  BATTERY.  193 

forcing  its  discharge  in  the  air.  The  use  of  the  stick  was  interrupted 
in  like  manner  by  its  seizure.  The  combatants  "clinched"  and 
"struggled  together,"  the  defendant  either  falling  in  the  struggle,  or 
being  pushed  backward  to  the  ground,  and  firing  his  pistol  a  second 
time  in  the  air.  The  prosecutor  and  a  by-stander  thereupon  got  on 
the  defendant,  and  held  him  down.  He  may  or  may  not  have  used 
more  force  than  was  necessary  to  resist  the  assault  by  the  defendant. 
This  is  entirely  immaterial,  for  had  both  of  the  combatants  fought 
willingly  together,  and  neither  in  self-defense,  each  would  have  been 
guilty  of  an  assault  and  battery  on  the  other.  Com.  v.  Collberg,  119 
Mass.  350,  20  Am.  Rep.  328 ;  Adams  v.  Waggoner,  33  Ind.  531,  5  Am. 
Rep.  230.  The  language  describing  the  contest  necessarily  implies  a 
contention  or  striving  together  for  the  mastery,  one  of  the  other, — a 
laying  hold  of  each  other's  person  in  a  rude  and  hostile  manner. 
This  was  a  battery.  It  may  have  been  justifiable  on  the  part  of  the 
person  assailed,  and  no  doubt  was.  But  there  is  no  sort  of  pretext 
that  the  act  was  justifiable  on  the  part  of  the  defendant.  There  was 
no  error  in  the  charge  on  this  subject  to  which  exception  was  taken. 
The  judgment  must' be  affirmed. 

("An  assault  and  battery  consists-  in  the  unlawful  and  unjustifiable  use  of 
force  and  violence  upon  the  person  of  another,  however  slight  If  justifiable, 
it  is  not  an  assault  and  battery."  Comm.  v.  McKie,  1  Gray,  61,  63,  61  Am.  Dec. 
410 ;  cf.  Jacobi  v.  State,  133  Ala.  1,  32  South,  158 ;  State  v.  Mills,  3  Pennewill 
(Del.)  508,  52  Atl.  266.) 


Assault  and  battery — Effect  of  consent. 

(45  Ohio  St  177,  12  N.  E.  185,  4  Am.  St  Rep.  535.) 

BARHOLT  v.  WRIGHT  (in  part). 
(Supreme  Court  of  Ohio.    May  10,  1887.) 

ASSAULT  AND  BATTERY — CONSENT. 

It  is  no  defense  to  an  action  for  assault  and  battery  that  the  acts  com- 
plained of  were  committed  in  a  fight  engaged  in  by  mutual  consent,  al- 
though such  consent  may  be  shown  in  mitigation  of  damages. 

Error  to  Circuit  Court,  Portage  County. 

Action  for  assault  and  battery.  The  evidence  showed  that  plain- 
tiff and  defendant  went  out  to  fight  by  agreement,  and  did  fight,  and 
plaintiff  was  severely  injured ;  one  of  his  fingers  being  so  bitten, 
among  other  things,  that  it  had  to  be  amputated.  The  court  charged 
that,  if  the  parties  fought  by  agreement,  plaintiff  could  not  recover, 
and  a  verdict  was  returned  for  defendant.  Upon  error  to  the  circuit 
court  a  new  trial  was  ordered.  Defendant  now  brings  error  to  re- 
verse that  order. 

CHASE  (2o  ED.) — 13 


194  LAW  OF  TORTS. 

MINSK  ALL,  J.  It  would  seem  at  first  blush  contrary  to  certain 
general  principles  of  remedial  justice  to  allow  a  plaintiff  to  recover 
damages  for  an  injury  inflicted  on  him  by  a  defendant  in  a  combat  of 
his  own  seeking;  or  where,  as  in  this  case,  the  fight  occurred  by  an 
agreement  between  the  parties  to  fight.  Thus,  in  cases  for  damages 
resulting  from  the  clearest  negligence  on  the  part  of  the  defendant,  a 
recovery  is  denied  the  plaintiff  if  it  appear  that  his  own  fault  in  any 
way  contributed  to  the  injury  of  which  he  complains.  And  a  maxim 
as  old  as  the  law,  volenti  non  fit  injuria,  forbids  a  recovery  by  a  plain- 
tiff where  it  appears  that  the  ground  of  his  complaint  had  been  in- 
duced by  that  to  which  he  had  assented ;  for,  in  judgment  of  law,  that 
to  which  a  party  assents  is  not  deemed  an  injury.  Broom,  Leg.  Max. 
268.  But  as  often  as  the  question  has  been  presented,  it  has  been  de- 
cided that  a  recovery  may  be  had  by  a  plaintiff  for  injuries  inflicted 
by  the  defendant  in  a  mutual  combat,  as  well  as  in  a  combat  where 
the  plaintiff  was  the  first  assailant,  and  the  injuries  resulted  from  the 
use  of  excessive  and  unnecessary  force  by  the  defendant  in  repelling 
the  assault.  These  apparent  anomalies  rest  upon  the  importance 
which  the  law  attaches  to  the  public  peace  as  well  as  to  the  life  and 
person  of  the  citizen.  From  considerations  of  this  kind  it  no  more 
regards  an  agreement  by  which  one  man  may  have  assented  to  be 
beaten  than  it  does  an  agreement  to  part  with  his  liberty,  and  be- 
come the  slave  of  another.  But  the  fact  that  the  injuries  were  re- 
ceived in  a  combat  in  which  the  parties  had  engaged  by  mutual  agree- 
ment may  be  shown  in  mitigation  of  damages.  2  Greenl.  Ev.  §  85 ; 
Logan  v.  Austin,  I  Stew.  476.  This,  however,  is  the  full  extent  to 
which  the  cases  have  gone.  We  will  notice  a  few  of  them.  In  Boul- 
ter v.  Clark,  an  early  case,  an  offer  was  made,  under  the  general 
issue,  to  show  that  the  plaintiff  and  the  defendant  fought  by  consent. 
%The  offer  was  denied;  the  chief  baron  saying:  "The  fighting  being 
unlawful,  the  consent  of  the  plaintiff  to  fight,  if  proved,  would  be  no 
bar  to  his  action."  Bull.  N.  P.  16.  A  number  of  earlier  cases  were 
cited,  and  among  them  that  of  Matthew  v.  Ollerton,  Comb.  218, 
where  it  is  said  "that,  if  a  man  license  another  to  beat  him,  such 
license  is  void,  because  it  is  against  the  peace."  It  will  be  found 
upon  examination  that  this  case  was  not  for 'an  assault  and  battery; 
it  was  on  an  award  that  had  been  made  by  the  plaintiff  on  a  submis- 
sion to  himself.  The  remark,  however,  made  in  the  reasoning  of  the 
court,  is  evidence  of  the  common  understanding  of  the  law  at  that 
early  day.  In  i  Steph.  N.  P.  211,  it  is  said:  "If  two  men  engage  in 
a  boxing  match,  an  action  can  be  sustained  by  either  of  them  against 
the  other,  if  an  assault  be  made ;  because  the  act  of  boxing  is  unlaw- 
ful, and  the  consent  of  the  parties  to  fight  cannot  excuse  the  injury." 
So  in  Bell  v.  Hansley,  48  N.  C.  131,  it  was  held  that  "one  may  recover 
in  an  action  for  assault  and  battery,  although  he  agreed  to  fight  with 
his  adversary ;  for,  such  agreement  to  break  the  peace  being  void,  the 


ASSAULT   AND   BATTERY.  195 

maxim,  volenti  non  fit  injuria,  does  not  apply."  The  following  cases 
are  to  the  same  effect:  Stout  v.  Wren,  i  Hawks,  420;  Adams  v. 
Waggoner,  33  Ind.  531,  5  Am.  Rep.  230;  Shay  v.  Thompson,  59  Wis. 
540,  18  N.  W.  473,  48  Am.  Rep.  538;  Logan  v.  Austin,  i  Stew.  476. 
And  so  it  was  held  in  Com.  v.  Collberg,  119  Mass.  350,  20  Am.  Rep. 
328,  that  where  two  persons  go  out  to  fight  with  their  fists,  by  con- 
sent, and  do  fight  with  each  other,  each  is  guilty  of  an  assault,  al- 
though there  is  no  anger  or  mutual  ill  will.  It  is  said  by  Judge 
Cooley  in  his  work  on  Torts  (page  163)  that  "consent  is  generally  a 
full  and  perfect  shield  when  that  is  complained  of  as  a  civil  injury 
which  was  consented  to.  *  *  *  A  man  may  not  even  complain 
of  the  adultery  of  his  wife  which  he  connived  at  or  assented  to.  If 
he  concurs  in  the  dishonor  of  his  bed,  the  law  will  not  give  him  re- 
dress, because  he  is  not  wronged.  These  cases  are  plain  enough,  be- 
cause they  are  cases  in  which  the  questions  arise  between  the  parties 
alone."  "But,"  he  adds,  "in  case  of  a  breach  of  the  peace  it  is  dif- 
ferent. The  state  is  wronged  by  this,  and  forbids  it  on  public 
grounds.  *  *  *  The  rule  of  law  is  therefore  clear  and  unques- 
tionable that  consent  to  an  assault  is  no  justification.  The  exception 
to  this  general  rule  embraces  only  those  cases  in  which  that  to  which 
assent  is  given  is  matter  of  indifference  to  public  order."  See,  also, 
to  like  effect,  Pollock  on  Torts,  139.  Neither  is  the  case  of  Champer 
v.  State,  14  Ohio  St.  437,  at  variance  with  the  principle  upon  which 
the  plaintiff  below  seeks  a  recovery.  The  case  seems  to  have  been 
somewhat  misapprehended  by  the  courts  of  some  of  the  states,  as 
well  as  by  some  text-writers.  By  the  statutes  of  this  state  a  distinct 
offense  is  made  of  an  affray  or  agreement  to  fight ;  and  the  effect  of 
the  holding  is  that  where  such  an  offense  is  committed  the  indictment 
must  be  for  an  affray,  and  not  for  an  assault  and  battery.  The  civil 
right  of  either  party  to  recover  of  the  other  for  injuries  received  in 
an  affray  is  not  affected  by  the  statute,  nor  by  the  decision  just  refer- 
red to.  Such  seems  to  have  been  the  view  taken  by  Boynton,  J.,  in 
the  subsequent  case  of  Darling  v.  Williams,  35  Ohio  St.  63.  The 
case  of  Fitzgerald  v.  Cavin,  no  Mass.  153,  is  to  the  effect  that  con- 
sent is  no  bar  to  that  which  occasions,  bodily  harm,  if  the  act  was  in- 
tentionally done.  It  is  upon  the  same  principle  of  public  policy  that 
one  who  is  the  first  assailant  in  a  fight  may  recover  of  his  antagonist 
for  injuries  inflicted  by  the  latter,  where  he  oversteps  what  is  reason- 
ably necessary  to  his  defense,  -and  unnecessarily  injures  the  plaintiff; 
or  that,  with  apparent  want  of  consistency,  permits  each  to  bring  an 
action  in  such  case,  the  assaulted  party  for  the  assault  first  committed 
upon  him,  and  the  assailant  for  the  excess  of  force  used  beyond  what 
was  necessary  for  self-defense.  Dole  v.  Erskine,  35  N.  H.  503 ;  criti- 
cising Elliott  v.  Brown,  2  Wend.  499,  20  Am.  Dec.  644;  Cooley, 
Torts,  165 ;  Darling  v.  Williams,  35  Ohio  St.  63 ;  Gizler  v.  Witzel,  82 
111.  322.  And  see,  also,  Com.  v.  Collberg,  supra.  And  upon  like 


196  LAW   OF  TORTS. 

principle  it  has  been  ruled  that  the  doctrine  of  contributory  negli- 
gence has  no  application  to  an  action  to  recover  damages  for  an  as- 
sault and  battery.  Ruter  v.  Foy,  46  Iowa,  132;  Steinmetz  v.  Kelly, 
72  Ind.  442,  37  Am.  Rep.  170;  Whitehead  v.  Mathaway,  85  Ind.  85. 
Negligence  of  the  plaintiff  contributing  to  the  injury  of  which  he 
complains  is  taken  into  consideration  only  in  those  cases  where  the 
liability  of  the  defendant  arises  from  want  of  care  on  his  part,  occa- 
sioning injury  to  the  plaintiff;  it  does  not  apply  to  the  commission  of 
an  intentional  wrong.  We  think  the  court  erred  in  its  charge  to  the 
jury.  The  injury  inflicted,  the  loss  of  a  finger,  was  a  severe  one ;  it 
amounted  in  fact  to  a  mayhem.  "Where  the  injury,"  (a  mayhem,) 
says  the  author  of  a  recent  and  quite  valuable  work  on  Criminal  Pro- 
cedure, "takes  place  during  a  conflict,  it  is  not  necessary  to  a  convic- 
tion that  the  accused  should  have  formed  the  intent  before  engaging 
in  the  conflict.  It  is  sufficient  if  he  does  the  act  voluntarily,  unlaw- 
fully, and  on  purpose."  Maxw.  Crim.  Proc.  260.  It  was  permissi- 
ble to  the  defendant  to  show  the  agreement  to  fight  in  mitigation  ol 
damages,  but  not  as  a  bar  to  the  action. 
Judgment  affirmed. 

(See,  also,  Grotton  v.  Glidden,  84  Me.  589,  24  Atl.  1008,  30  Am.  St.  Rep.  413; 
Gutzman  v.  Clancy,  114  Wis.  589,  90  N.  W.  1081,  58  L.  R.  A.  744;  McNatt  v. 
McRae,  117  Ga.  898,  45"  S.  E.  248;  State  v.  Burnham,  56  Vt  445,  48  Am.  Rep. 
801;  State  v.  Newland,  27  Kan.  764;  Jones  v.  Gale,  22  Mo.  App.  637;  Willey 
v.  Carpenter,  64  Vt.  212,  23  Atl.  630,  15  L.  R.  A.  853;  cf.  Fitzgerald  v.  Cavin, 
110  Mass.  153;  Pillow  v.  Busbnell,  5  Barb.  156.  Even  if  plaintiff,  by  his  ac- 
tions and  words,  invited  tbe  fight  in  which  he  was  injured,  he  may  still  re- 
cover damages  for  such  injuries.  Lund  v.  Tyler,  115  Iowa,  236,  88  N.  W.  333.) 


Justifiable  and  excusable  assaults  and  batteries. 
A.  Self-defense — Defense  of  property. 

(4  Denio,  448,  47  Am.  Dec.  265.) 

SCRIBNER  v.   BEACH. 
(Supreme  Court  of  New  York.     May,  1847.) 

JUSTIFIABLE  OB  EXCUSABLE  ASSAULT— SELF-DEFENSE— DEFENSE  OP  PROPERTY. 
Plaintiff  having  made  charcoal  on  land  which  defendant  had  previously 
occupied,  defendant  came  to  the  place,  during  plaintiff's  absence  there- 
from, and  began  raking  out  the  coal  from  the  pit  with  a  rake.  Plaintiff, 
returning,  took  hold  of  the  rake  to  take  it  from  defendant,  and  defendant 
knocked  him  down.  Plaintiff  again  attempted  to  take  the  rake,  and  de- 
fendant struck  him  with  it  and  broke  his  arm.  Held,  that  there  was  a 
manifest  disproportion  between  the  assault  by  plaintiff  and  the  battery 
by  defendant,  and  the  latter  was  not  justified,  either  on  the  ground  of 
self-defense,  or  of  defense  of  possession  of  the  coal,  even  if  defendant  had 
title  thereto. 


ASSAULT  AND  BATTEEY.  197 

Motion  for  new  trial. 

Action  of  trespass  for  assaulting  plaintiff.  Defendant  pleaded  not 
guilty,  with  notice  of  son  assault  demesne,  and  that  the  assault  was 
committed  in  defense  of  defendant's  personal  property,  namely,  a 
pit  of  charcoal  and  a  coal  rake.  At  the  trial  it  appeared  that  the  as- 
sault occurred  on  land  of  which  defendant  had  been  in  possession  * 
about  three  years  previously;  that,  defendant  having  removed  to  an- 
other county,  plaintiff  had  taken  possession  of  the  land,  and  had 
burned  charcoal  upon  it.  While  plaintiff  was  absent,  for  the  purpose 
of  taking  the  coal  to  market,  defendant  came  to  the  pit,  and  began 
taking  out  the  coal  with  a  rake  which  he  found  there,  having  also  a 
wagon  in  which  to  remove  the  coal.  Plaintiff,  returning,  asked  de- 
fendant what  he  was  doing,  to  which  defendant  answered  that  if 
plaintiff  would  come  there  he  would  show  him.  Plaintiff  then  took 
hold  of  the  rake,  for  the  purpose  of  taking  it  from  defendant,  who, 
with  one  hand,  knocked  plaintiff  down.  Plaintiff  arose,  and  again 
took  hold  of  the  rake ;  but  defendant  pulled  it  away,  and  with  it  aimed 
a  blow  at  plaintiff's  head,  which  the  latter  sought  to  prevent  by  put- 
ting up  his  hand.  The  rake  struck  his  arm  near  the  wrist,  and  frac- 
tured it.  Defendant  offered  proof  that  he  had  title  to  the  land  on 
which  the  coal  was  burned,  which  was  uncultivated  and  unimproved ; 
and  that  the  coal  was  made  from  his  wood  cut  upon  that  land ;  but  on 
objection  by  plaintiff's  counsel  to  this  evidence,  it  was  excluded. 
The  jury  found  a  verdict  for  plaintiff,  for  $150.  Defendant  moved 
for  a  new  trial  on  a  case. 

JEWETT,  J.  Self-defense  is  a  primary  law  of  nature,  and  it  is 
held  an  excuse  for  breaches  of  the  peace,  and  even  for  homicide  itself. 
But  care  must  be  taken  that  the  resistance  does  not  exceed  the 
bounds  of  mere  defense,  prevention,  or  recovery,  so  as  to  become 
vindictive ;  for  then  the  defender  would  himself  become  the  aggres- 
sor. The  force  used  must  not  exceed  the  necessity  of  the  case.  Elliott 
v.  Brown,  2  Wend.  497,  20  Am.  Dec.  644;  Gates  v.  L,ounsbury,  20 
Johns.  427;  Gregory  v.  Hill,  8  Term  R.  299;  Baldwin  v.  Hayden,  6 
Conn.  453 ;  3  Bl.  Comm.  3-5 ;  i  Hawk.  P.  C.  130;  Cockcroft  v.  Smith, 
2  Salk.  642;  Curtis  v.  Carson,  2  N.  H.  539.  A  man  may  justify  an 
assault  and  battery  in  defense  of  his  lands  or  goods,  or  of  the  goods 
of  another  delivered  to  him  to  be  kept.  Hawk.  P.  C.  bk.  I,  c.  60,  § 
23;  Seaman  v.  Cuppledick,  Owen,  150.  But  in  these  cases,  unless 
the  trespass  is  accompanied  with  violence,  the  owner  of  the  land  or 
goods  will  not  be  justified  in  assaulting  the  trespasser  in  the  first  in- 
stance, but  must  request  him  to  depart  or  to  desist,  and,  if  he  refuses, 
he  should  gently  lay  his  hands  on  him  for  the  purpose  of  removing 
him,  and,  if  he  resist  with  force,  then  force  sufficient  to  expel  him 
may  be  used  in  return  by  the  owner.  Weaver  v.  Bush,  8  Term  R. 
78;  Bull.  N.  P.  19;  i  East,  P.  C.  406.  It  is  otherwise  if  the  trespasser 


198  LAW  OF  TORTS. 

enter  the  close  with  force.  In  that  case  the  owner  may,  without 
previous  request  to  depart  or  desist,  use  violence  in  return,  in  the 
first  instance,  proportioned  to  the  force  of  the  trespasser,  for  the  pur- 
pose only  of  subduing  his  violence.  "A  civil  trespass,"  says  Holroyd, 
J.,  "will  not  justify  the  firing  a  pistol  at  the  trespasser  in  sudden  re- 
sentment or  anger.  If  a  person  takes  forcible  possession  of  anoth- 
er's close,  so  as  to  be  guilty  of  a  breach  of  the  peace,  it  is  more  than 
a  trespass;  so  if  a  man  with  force  invades  and  enters  the  dwelling- 
house  of  another.  But  a  man  is  not  authorized  to  fire  a  pistol  on 
every  invasion  or  intrusion  into  his  house.  He  ought,  if  he  has  a 
reasonable  opportunity  to  endeavor  to  remove  the  trespasser  with- 
out having  recourse  to  the  last  extremity."  Meade's  Case,  Lewin, 
185 ;  Rose.  Crim.  Ev.  262.  The  rule  is  that,  in  all  cases  of  resistance 
to  trespassers,  the  party  resisting  will  be  guilty  in  law  of  an  assault 
and  battery,  if  he  resists  with  such  violence  that  it  would,  if  death 
had  ensued,  have  been  manslaughter.  Where  one  manifestly  intends 
and  endeaVors,  by  violence  or  surprise,  to  commit  a  known  felony 
upon  a  man's  person,  (as  to  rob,  or  murder,  or  to  commit  a  rape  upon  a 
woman,)  or  upon  a  man's  habitation  or  property,  (as  arson  or  burg- 
lary,) the  person  assaulted  may  repel  force  by  force ;  and  even  his 
servant,  then  attendant  on  him,  or  any  other  person  present,  may 
interpose  for  preventing  mischief;  and  in  the  latter  case  the  owner, 
or  any  part  of  his  family,  or  even  a  lodger  with  him,  may  kill  the  as- 
sailant, for  preventing  the  mischief.  Fost.  Cr.  Law,  273.  In  respect 
to  personal  property,  the  right  of  recaption  exists,  with  the  caution 
that  it  be  not  exercised  violently,  or  by  breach  of  the  peace;  for, 
should  these  accompany  the  act,  the  party  would  then  be  answerable 
criminally.  But  the  riot  or  force  would  not  confer  a  right  on  a  per- 
son who  had  none;  nor  would  they  subject  the  owner  of  the  chattel 
to  a  restoration  of  it  to  one  who  was  not  the  owner.  Hyatt  v.  Wood, 
4  Johns.  150,  4  Am.  Dec.  258.  In  the  case  of  personal  property,  im- 
properly detained  or  taken  away,  it  may  be  taken  from  the  house  and 
custody  of  the  wrong-doer,  even  without  a  previous  request ;  but  un- 
less it  was  seized,  or  attempted  to  be  seized,  forcibly,  the  owner  can- 
not justify  doing  anything  more  than  gently  laying  his  hands  on  the 
wrong-doer  to  recover  it.  Weaver  v.  Bush,  supra;  Com.  Dig. 
"Pleader,"  3  M,  17;  Spencer  v.  McGowen,  13  Wend.  256.  In  one 
branch  of  the  defense  the  defendant  set  up  son  assault  demesne. 
That  was  overthrown  by  evidence  showing  a  manifest  disproportion 
between  the  battery  given  and  the  first  assault.  Even  a  wounding 
was  proved.  The  defendant  also  relied  upon  a  defense  of  his  posses- 
sion of  certain  personal  property,  which  he  insisted  was  invaded  by 
the  plaintiff,  and  in  the  defense  of  which  he  committed  the  assault. 
To  sustain  this  defense,  he  proposed  to  prove  that  the  coal-pit  was  on 
new  and  unimproved  land,  to  which  he  had  title,  and  that  the  wood 
from  which  the  coal  was  made  was  cut  from  this  land  without  any  au- 


ASSAULT  AND  BATTERY.  199 

thority  from  him;  but  this  evidence  was  rejected.  The  object  of  the 
strife  between  the  parties  was  the  possession  of  the  rake,  not  the 
coal.  The  plaintiff  is  not  shown  to  have  committed  a  single  act  tend- 
ing to  disturb  the  defendant  in  his  possession  of  the  latter.  The 
ownership  of  the  coal,  therefore,  was  not  a  material  fact.  But  admit- 
ting that  the  defendant  had  a  legal  title  to  the  coal,  and  that  the 
plaintiff's  object  in  regaining  possession  of  the  rake  was  to  use  it  as 
a  means  of  retaking  the  possession  of  the  coal,  still  the  defendant 
could  not  justify  the  wounding  merely  in  defense  of  his  possession. 
Gregory  v.  Hill,  supra.  Unless  the  plaintiff  first  attempted  forcibly 
to  take  the  coal,  of  which  there  was  no  proof,  I  think  the  evidence 
was  immaterial,  and  was  properly  overruled. 
New  trial  denied. 


(131  Mass.  423.) 

COMMONWEALTH  V.  O'MALLET. 
(Supreme  Judicial  Court  of  Massachusetts.    October  11,  1881.) 

JUSTIFIABLE  OB  EXCUSABLE  ASSAULT— SELF-DEFENSE— KILLING  ASSAILANT. 

A  person  attacked  is  justified  in  defending  himself  by  shooting  his  as- 
sailant, if  he  has  reason  to  believe  that  the  assailant  intends  to  do  him 
great  bodily  harm,  and  that  he  is  in  danger  of  such  harm,  and  that  no 
other  means  can  effectually  prevent  it 

Exceptions  from  Superior  Court. 

Indictment  against  William  O'Malley  for  the  manslaughter  of  Mal- 
achi  Grady.  At  the  trial  it  appeared  that,  previous  to  the  killing  of 
Grady,  he  and  defendant  had  had  a  dispute,  and  Grady  had  made 
threats  against  defendant ;  that,  on  the  morning  of  the  day  on  which 
the  killing  occurred,  there  were  further  angry  words  between  them 
about  the  same  matter  at  defendant's  house;  that  Grady  left  the 
house,  and,  a  few  hours  afterwards,  they  met  on  the  street;  that 
Grady  then  violently  attacked  defendant,  and  gave  him  several  seri- 
ous blows  on  and  about  the  head  and  face ;  and  that,  in  the  course  of 
this  encounter,  defendant  shot  Grady  with  a  pistol,  inflicting  a  wound 
from  the  effects  of  which  Grady  died.  Defendant  requested  the 
judge  to  instruct  the  jury  that,  if  defendant  had  reason  to  believe 
that  Grady  intended  to  do  him  great  bodily  harm,  and  had  reason 
to  believe  he  was  in  danger  of  great  bodily  harm,  he  would  be  jus- 
tified in  defending  himself  by  shooting  his  assailant.  The  judge 
gave  the  instruction  requested,  but  inserted  after  the  words,  "dan- 
ger of  great  bodily  harm,"  and  before  the  words,  "he  would  be  justi- 
fied," the  words,  "which  no  other  means  could  effectually  prevent." 
The  jury  returned  a  verdict  of  guilty,  and  the  defendant  alleged  ex- 
ceptions. 


200  LAW  OF  TORTS. 

GRAY,  C.  J.  According  to  the  manifest  intent  and  natural  mean- 
ing of  the  instruction  given  to  the  jury,  the  qualification,  "if  the  de- 
fendant had  reason  to  believe,"  applied  to  the  clause,  "which  no  other 
means  could  effectually  prevent,"  as  well  as  to  the  rest  of  the  propo- 
sition laid  down  by  the  court.  In  legal  effect,  as  in  common  under- 
standing, the  instruction  was  that  if  the  defendant  had  reason  to  be- 
lieve that  his  assailant  intended  to  do  him  great  bodily  harm,  and 
that  he  was  in  danger  of  such  harm,  which,  as  he  had  reason  to  be- 
lieve, no  other  means  could  effectually  prevent,  he  would  be  justified 
in  defending  himself  by  shooting  him.  Anything  less  than  this  would 
clearly  afford  no  justification.  Trial  of  Self  ridge,  160;  Comm.  v. 
Woodward,  102  Mass.  155,  161.  The  suggestion  in  argument  that 
the  instruction  excluded  all  other  means  of  self-defense  which  might 
result  in  the  death  of  the  assailant  than  shooting  is  a  strained  inter- 
pretation, which  there  is  nothing  in  the  bill  of  exceptions  to  show 
could  have  been  applied  to  the  evidence  before  the  jury. 

Exceptions  overruled. 

(See  also  as  to  self-defense,  People  v.  Johnson,  139  N.  Y.  358,  34  N.  E.  920 ; 
Panton  v.  People,  114  111.  505,  2  N.  E.  411;  State  v.  Gibson  [Or.]  73  Pac.  333; 
Germolus  v.  Sausser  [Minn.]  85  N.  W.  946 ;  Marts  v.  State,  26  Ohio  St.  162 ; 
as  to  defense  of  brother,  State  v.  Greer,  22  W.  Va.  800 ;  as  to  defense  of  one's 
land,  Com.  v.  Clark,  2  Mete.  [Mass.]  23 ;  Hannabalson  v.  Sessions,  116  Iowa, 
457,  90  N.  W.  93,  93  Am.  St.  Rep.  250 ;  Kiff  v.  Youmans,  86  N.  Y.  324,  40  Am. 
Rep.  543 ;  State  v.  Kaiser,  78  Mo.  App.  575 ;  as  to  defense  of  one's  home,  State 
v.  Middleham,  62  Iowa,  150,  17  N.  W.  446 ;  Fostbinder  v.  Svitak,  16  Neb.  499, 
20  N.  W.  866;  State  v.  Peacock,  40  Ohio  St.  333;  as  to  defense  of  chattels, 
People  v.  Dann,  53  Mich.  490,  19  N.  W.  159,  51  Am.  Rep.  151 ;  Wright  v.  So. 
Exp.  Oo.  [C.  C.]  80  Fed.  85 ;  as  to  defense  of  a  third  person,  State  v.  Totman, 
80  Mo.  App.  125.  The  authorities  differ  as  to  the  right  to  use  force  to  regain 
possession  of  land.  Thus  in  some  states  it  is  held  that  if  the  owner  of 
land  only  uses  the  force  reasonably  necessary  to  expel  the  person  in  wrong- 
ful possession,  he  is  not  liable  civilly  for  assault  and  battery,  though  he  may 
be  criminally  for  a  breach  of  the  peace.  Souter  v.  Codman,  14  R.  I.  119,  51 
Am.  Rep.  364;  Lambert  v.  Robinson,  1G2  Mass.  34,  37  N.  E.  753,  44  Am.  St. 
Rep.  326.  But  in  New  York  it  is  held  that  the  owner  is  civilly  liable  for  as- 
sault and  battery  in  such  a  case,  and  that  he  should  regain  possession  by  le- 
gal proceedings  instead  of  by  force.  Bristor  v.  Burr,  120  N.  Y.  427,  24  N.  E. 
937,  8  L.  R.  A.  710.) 


ASSAULT  AND  BATTERY.  201 

(148  Mass.  529,  20  N.  E.  171,  2  L.  R.  A.  623,  12  Am.  St  Rep.  591.) 

COMMONWEALTH  v.  DONAHUE. 
(Supreme  Judicial  Court  of  Massachusetts.    February  28,  1889.) 

JUSTIFIABLE  OB  EXCUSABLE  ASSAULT — RECAPTION  OF  PBOPEBTY. 

One  whose  personal  property  Is  taken  wrongfully  by  another  may  re- 
take it  from  him  immediately  afterwards,  using  reasonable  force.  What 
is  such  force  is  a  question  of  fact  for  the  Jury. 

Exceptions  from  Superior  Court,  Franklin  County. 
Indictment  against  Thomas  Donahue  for  robbery.     Defendant  was 
convicted  of  assault,  and  alleged  exceptions. 

HOLMES,  J.  This  is  an  indictment  for  robbery,  in  which  the  de- 
fendant has  been  found  guilty  of  an  assault.  The  evidence  for  the 
commonwealth  was  that  the  defendant  had  bought  clothes  amounting 
to  $21.55  °f  one  Mitchelman,  who  called  at  the  defendant's  house  by 
appointment  for  his  pay;  that  some  discussion  arose  about  the  bill, 
and  that  the  defendant  went  up  stairs,  brought  down  the  clothes, 
placed  them  on  a  chair  and  put  $20  on  a  table,  and  told  Mitchelman 
that  he  could  have  the  money  or  the  clothes ;  that  Mitchelman  took 
the  money,  and  put  it  in  his  pocket,  and  told  the  defendant  he  owed 
him  $1.55,  whereupon  the  defendant  demanded  his  money  back,  and, 
on  Mitchelman  refusing,  attacked  him,  threw  him  on  the  floor,  and 
choked  him,  until  Mitchelman  gave  him  a  pocket-book  containing 
$29.  The  defendant's  counsel  denied  the  receiving  of  the  pocket- 
book,  and  said  that  he  could  show  that  the  assault  was  justifiable  un- 
der the  circumstances  of  the  case,  as  the  defendant  believed  that  he 
had  a  right  to  recover  his  own  money  by  force,  if  necessary.  The 
presiding  justice  stated  that  he  should  be  obliged  to  rule  that  the  de- 
fendant would  not  be  justified  in  assaulting  Mitchelman  to  get  his 
own  money,  and  that  he  should  rule  as  follows :  "If  the  jury  are 
satisfied  that  the  defendant  choked  and  otherwise  assaulted  Mitchel- 
man, they  would  be  warranted  in  finding  the  defendant  guilty,  al- 
though the  sole  motive  of  the  defendant  was  by  this  violence  to  get 
from  Mitchelman  by  force  money  which  the  defendant  honestly  be- 
lieved to  be  his  own."  Upon  this  the  defendant  saved  his  excep- 
tions, and  declined  to  introduce  evidence.  The  jury  were  instructed 
as  stated,  and  found  the  defendant  guilty. 

On  the  evidence  for  the  commonwealth,  it  appeared,  or,  at  the  low- 
est, the  jury  might  have  found,  that  the  defendant  offered  the  $20  to 
Mitchelman  only  on  condition  that  Mitchelman  should  accept  that 
sum  as  full  payment  of  his  disputed  bill,  and  that  Mitchelman  took 
the  money,  and  at  the  same  moment,  or  just  afterwards,  as  part  of 
the  same  transaction,  repudiated  the  condition.  If  this  was  the  case, 
since  Mitchelman,  of  course,  whatever  the  sum  due  him,  had  no 


202  LAW  OF  TORTS. 

right  to  that  particular  money  except  on  the  conditions  on  which  it 
was  offered  (Com.  v.  Stebbins,  8  Gray,  492),  he  took  the  money 
wrongfully  from  the  possession  of  the  defendant;  or  the  jury  might 
have  found  that  he  did,  whether  the  true  view  be  that  the  defendant 
did  not  give  up  possession,  or  that  it  was  obtained  from  him  by 
Mitchelman's  fraud,  (Com.  v.  Devlin,  141  Mass.  423,  431,  6  N.  E.  64; 
Chiffer's  Case,  T.  Raym.  275,  276;  Reg.  v.  Thompson,  Leigh  &  C. 
225;  Reg.  v.  Slowly,  12  Cox,  Crim.  Cas.  269;  Reg.  v.  Rodway,  9  Car. 
&  P.  784;  Rex  v.  Williams,  6  Car.  &  P.  390;  2  East,  P.  C.  c.  16,  §§ 
110-113.)  See  Reg.  v.  Cohen,  2  Denison,  Cr.  Cas.  249,  and  cases 
infra.  The  defendant  made  a  demand,  if  that  was  necessary, — which 
we  do  not  imply, — before  using  force.  Green  v.  Goddard,  2  Salk. 
641 ;  Polkinhorn  v.  Wright,  8  Q.  B.  (N.  S.)  197 ;  Com.  v.  Clark,  2 
Mete.  (Mass.)  23,  25 ;  and  cases  infra.  It  is  settled  by  ancient  and 
modern  authority  that  under  such  circumstances  a  man  may  defend 
or  regain  his  momentarily  interrupted  possession  by  the  use  of  rea- 
sonable force,  short  of  wounding,  or  the  employment  of  a  dangerous 
weapon.  Com.  v.  Lynn,  123  Mass.  218;  Com.  v.  Kennard,  8  Pick. 
133;  Anderson  v.  State,  6  Baxt.  608;  State  v.  Elliot,  n  N.  H.  540, 
545;  Rex  v.  Milton,  Moody  &  M.  107;  Y.  B.  9  Edw.  IV.  28,  pi.  42; 
19  Hen.  VI.  31,  pi.  59;  21  Hen.  VI.  27,  pi.  9.  See  Seaman  v.  Cupple- 
dick,  Owen,  150;  Taylor  v.  Markham,  Cro.  Jac.  224,  Yelv.  157,  I 
Brown.  &  G.  215;  Shingleton  v.  Smith,  Lutw.  1481,  1483;  2  Inst.  316; 
Finch,  Law,  203;  2  Hawk.  P.  C.  c.  60,  §  23;  3  Bl.  Comm.  121.  To 
this  extent  the  right  to  protect  one's  possession  has  been  regarded 
as  an  extension  of  the  right  to  protect  one's  person,  with  which  it  is 
generally  mentioned.  Baldwin  v.  Hayden,  6  Conn.  453;  Y.  B.  19 
Hen.  VI.  31,  pi.  59;  Rogers  v.  Spence,  13  Mees.  &  W.  571,  581;  2 
Hawk.  P.  C.  c.  60,  §  23;  3  Bl.  Comm.  120,  131. 

We  need  not  consider  whether  this  explanation  is  quite  adequate. 
There  are  weighty  decisions  which  go  further  than  those  above  cited, 
and  which  hardly  can  stand  on  the  right  of  self-defense,  but  involve 
other  considerations  of  policy.  It  has  been  held  that  even  where  a 
considerable  time  had  elapsed  between 'the  wrongful  taking  of  the 
defendant's  property  and  the  assault,  the  defendant  had  a  right  to 
regain  possession  by  reasonable  force,  after  demand  upon  the  third 
person  in  possession,  in  like  manner  as  he  might  have  protected  it 
without  civil  liability.  Whatever  the  true  rule  may  be,  probably 
there  is  no  difference  in  this  respect  between  the  civil  and  the  crim- 
inal law.  Blades  v.  Higgs,  10  C.  B.  (N.  S.)  713,  12  C.  B.  (N.  S.) 
501,  13  C.  B.  (N.  S.)  844,  ii  H.  L.  Cas.  621;  Com.  v.  McCue,  16 
Gray,  226,  227.  The  principle  has  been  extended  to  a  case  where 
the  defendant  had  yielded  possession  to  the  person  assaulted,  through 
the  fraud  of  the  latter.  Hodgeden  v.  Hubbard,  18  Vt.  504,  46  Am. 
Dec.  167.  See  Johnson  v.  Perry,  56  Vt.  703,  48  Am.  Rep.  826.  On 
the  other  hand,  a  distinction  has  been  taken  between  the  right  to 


ASSAULT  AND  BATTERY.  203 

maintain  possession  and  the  right  to  regain  it  from  another  who  is 
peaceably  established  in  it,  although  the  possession  of  the  latter  is 
wrongful.  Bobb  v.  Bosworth,  Litt.  Sel.  Cas.  81.  See  Barnes  v. 
Martin,  15  Wis.  240,  82  Am.  Dec.  670;  Andre  v.  Johnson,  6  Blackf. 
375;  Davis  v.  Whitridge,  2  Strob.  232;  3  Bl.  Comm.  4.  It  is  un- 
necessary to  decide  whether  in  this  case,  if  Mitchelman  had  taken 
the  money  with  a  fraudulent  intent,  but  had  not  repudiated  the  con- 
dition until  afterwards,  the  defendant  would  have  had  any  other 
remedy  than  to  hold  him  to  his  bargain,  if  he  could,  even  if  he  knew 
that  Mitchelman  still  had  the  identical  money  upon  his  person.  -If 
the  force  used  by  the  defendant  was  excessive,  the  jury  would  have 
been  warranted  in  finding  him  guilty.  Whether  -it  was  excessive 
or  not  was  a  question  for  them ;  the  judge  could  not  rule  that  it 
was  not,  as  matter  of  law.  Com.  v.  Clark,  2  Mete.  (Mass.)  23. 
Therefore  the  instruction  given  to  them,  taken  only  literally,  was 
correct.  But  the  preliminary  statement  went  further,  and  was  er- 
roneous ;  and,  coupling  that  statement  with  the  defendant's  offer  of 
proof,  and  his  course  after  the  rulings,  we  think  it  fair  to  assume  that 
the  instruction  was  not  understood  to  be  limited,  or  indeed  to  be 
directed,  to  the  case  of  excessive  force,  which,  so  far  as  appears,  had 
not  been  mentioned,  but  that  it  was  intended  and  understood  to  mean 
that  any  assault  to  regain  his  own  money  would  warrant  finding  the 
defendant  guilty.  Therefore  the  exceptions  must  be  sustained. 

It  will  be  seen  that  our  decision  is  irrespective  of  the  defendant's 
belief  as  to  what  he  had  a  right  to  do.  If  the  charge  of  robbery 
had  been  persisted  in,  and  the  difficulties  which  we  have  stated  could 
have  been  got  over,  we  might  have  had  to  consider  cases  like  Reg. 
v.  Boden,  I  Car.  &  K.  395,  397 ;  Reg.  v.  Hemmings,  4  Fost.  &  F.  50 ; 
State  v.  Hollyway,  41  Iowa,  200,  20  Am.  Rep.  586.  Compare  Com. 
v.  Stebbins,  8  Gray,  492;  Com.  v.  McDuffy,  126  Mass.  467.  There 
is  no  question  here  of  the  effect  of  a  reasonable  but  mistaken  belief 
with  regard  to  the  facts.  State  v.  Nash,  88  N.  C.  618.  The  facts 
were  as  the  defendant  believed  them  to  be. 

Exceptions  sustained. 

(To  the  same  effect  are  Hopkins  v.  Dlckson,  59  N.  H.  235;  State  v.  Elliot, 
11  N.  H.  540;  Johnson  v.  Perry,  56  Vt  703,  48  Am.  Rep.  826;  Hamilton  v.  Ar- 
nold, 116  Mich.  684,  75  N.  W.  133;  Heminway  v.  Heminway,  58  Conn.  443,  19 
Atl.  7G6;  Winter  v.  Atkinson,  92  111.  App.  162;  cf.  Barr  v.  Post,  56  Neb.  698, 
77  N.  W.  123 ;  Mills  v.  Wooters,  59  111.  234.  But  some  cases  are  to  the  con- 
trary, holding  that  chattels  may  be  retaken  from  another  peaceably,  but  not 
by  the  use  of  force  against  his  person.  Sabre  v.  Mott  [C.  C.]  88  Fed.  780; 
Hendrix  v.  State,  50  Ala.  148;  Street  v.  Sinclair,  71  Ala.  110;  cf.  Madden 
v.  Brown,  8  App.  Div.  454,  40  N.  Y.  Supp.  714.  All  the  cases  agree,  however, 
that  there  would  be  a  civil  liability  for  a  retaking  by  excessive  force,  and  a 
criminal  liability  if  a  breach  of  the  peace  were  caused.) 


204  LAW  OF  TORTS. 

(108  Term.  242,  66  S.  W.  1128.) 

DANIEL  v.   GILES. 
(Supreme  Court  of  Tennessee.     December  14,  1901.) 

1.  WORDS  ALONE  DO  NOT  JUSTIFY  AN  ASSAULT — WHEN  EVIDENCE  OF  THEM  WILL 

MITIGATE  DAMAGES. 

Although  any  provocation  calculated  to  arouse  the  passions  of  a  rea- 
sonable man,  if  offered  at  the  time  of  an  assault,  or  so  recently  as  to  be 
a  part  of  the  res  gestse,  will  be  considered  in  mitigation  of  damages,  no 
words  or  insults  can  actually  justify  an  assault 

2.  SAME— INSTRUCTIONS. 

An  instruction  in  an  action  for  assault  that,  if  the  jury  believed  that 
defendant  assaulted  plaintiff  because  of  insults,  and  not  because  he  be- 
lieved plaintiff  was  about  to  assault  him,  plaintiff  would  be  entitled  to 
recover  just  such  damages  as  defendant  had  inflicted  upon  him,  and  that, 
if  they  found  for  plaintiff,  he  would  be  entitled  to  recover  for  mental  and 
physical  suffering,  loss  of  time,  etc.,  was  erroneous,  in  that  it  eliminated 
the  consideration  of  provocation  as  an  element  in  mitigation  of  damages. 

Appeal  from  Circuit  Court,  Montgomery  County;  B.  D.  Bell, 
Judge. 

Action  by  Tim  Giles,  Jr.,  against  W.  M.  Daniel,  Jr.  From  a  judg- 
ment in  favor  of  plaintiff,  defendant  appeals.  Reversed. 

McALISTER,  J.  Plaintiff  below  brought  this  suit  to  recover 
damages  for  an  assault  and  battery  inflicted  upon  him  by  the  de- 
fendant, Daniel.  The  trial  resulted  in  a  verdict  and  judgment 
against  the  defendant  for  $500.  Daniel  appealed,  and  has  assigned 
errors.  The  court  properly  charged  the  jury  that  no  words  or  in- 
sults or  opprobrious  epithets  would  justify  an  assault.  It  is  well" 
settled,  however,  that  any  provocation  calculated  to  heat  the  blood 
or  arouse  the  passions  of  a  reasonable  man,  if  offered  at  the  time 
of  the  assault,  or  so  recently  as  to  become  a  part  of  the  res  gestse, 
is  admissible  in  evidence,  and  must  be  considered  by  the  jury  in 
mitigation  of  damages.  Jacaway  v.  Dula,  7  Yerg.  82,  27  Am.  Dec. 
492;  Chambers  v.  Porter,  5  Cold.  273.  It  is  assigned  as  error  that 
the  charge  of  the  trial  judge  virtually  eliminated  from  the  considera- 
tion of  the  jury  in  assessing  the  damages  the  proof  of  provocation. 
On  this  subject  the  court  charged  that:  "If  the  plaintiff,  Tim  Giles, 
Jr.,  was  upon  the  witness  stand,  and  became  stubborn  or  insolent  or 
insulted  the  defendant,  and  the  defendant,  aroused  or  excited  by 
his  conduct  and  by  the  insult  that  he  offered  or  believed  he  offered, 
struck  and  injured  the  plaintiff  when  he  did  not  believe  that  plain- 
tiff was  going  to  assault  him,  but  his  action  in  striking  him  was 
based  upon  the  insults  alone,  and  not  upon  an  honest  belief  that  he 
was  about  to  be  assaulted  by  him,  then  the  plaintiff  would  be  en- 
titled to  recover  just  such  damages  as  the  defendant  inflicted  upon 


ASSAULT  AND  BATTERY.  205 

him.  No  man  has  a  right  to  assault  another  except  in  necessary 
self-defense ;  and,  if  the  plaintiff  was  assaulted  by  the  defendant, 
and  it  was  not  in  necessary  self-defense,  or  upon  his  belief  founded 
upon  reasonable  grounds  that  he  was  going  to  be  assaulted,  the 
plaintiff  should  recover  just  such  damages  as  he  has  sustained." 
The  court  then  proceeds  to  instruct  the  jury  that  if  they  find  for  the 
plaintiff  under  the  charge  he  would  be  entitled  to  recover  for  mental 
and  physical  suffering,  loss  of  time,  medical  expenses,  etc.  The 
court  failed  to  instruct  the  jury  that  any  insulting  language  or  provo- 
cation offered  by  the  plaintiff  at  the  time  of  the  assault  should  be 
considered  in  mitigation  of  damages.  On  the  contrary,  the  consid- 
eration of  the  provocation  for  any  purpose  is  entirely  excluded  by 
the  court  in  his  hypothetical  statement  of  facts,  and  the  jury  were  in- 
structed that,  unless  the  proof  showed  the  defendant  acted  in  self- 
defense  at  the  time  of  the  assault,  the  plaintiff  would  be  entitled  to 
recover  just  such  damages  as  he  had  sustained.  This  is  an  affirma- 
tive error,  for  which  the  judgment  must  be  reversed,  and  the  cause 
remanded. 

(Some  authorities  hold  that  evidence  of  immediate  provocation  may  be  re- 
ceived to  reduce  exemplary  damages,  but  not  to  mitigate  actual  damages,  while 
others  hold  that  it  may  be  available  as  well  for  the  latter  purpose.  Gohl- 
smith's  Adm'r  v.  Joy,  61  Vt.  488,  17  Atl.  1010,  4  L.  R.  A.  500,  15  Am.  St.  Rep. 
923  [collecting  the  cases  on  both  sides  of  this  question];  Osier  v.  Walton,  67 
N.  J.  Law,  63,  50  Atl.  590;  Donnelly  v.  Harris,  41  111.  126;  Willey  v.  Carpen- 
ter, 64  Vt.  212,  23  Atl.  630,  15  L.  R.  A.  853;  A  very  v.  Ray,  1  Mass.  12;  Lee  v. 
Woolsey,  19  Johns.  319,  10  Am.  Dec.  230;  Kiff  v.  Youmans,  86  N.  Y.  324,  40 
Am.  Rep.  543;  Genung  v.  Baldwin,  77  App.  Div.  584,  79  N.  Y.  Supp.  569;  Nor- 
ris  v.  Casel.  90  Ind.  143;  Johnson  v.  McKee,  27  Mich.  471;  Goucher  v.  Jamie- 
son,  124  Mich.  21,  82  N.  W.  6(53;  Hendle  v.  Geiler  [Del.  Super.]  50  Atl.  632; 
Rochester  v.  Anderson,  1  Bibb,  428;  Cushrnan  v.  Ryan,  1  Story,  100,  Fed.  Gas. 
No.  3,515;  cf.  Shipley  v.  Edwards,  87  Iowa,  310,  54  N.  W.  151.  Mere  words, 
however  abusive  they  may  be,  cannot  justify  an  assault.  Id. ;  Murray  v. 
Boyne,  42  Mo.  472;  Irlbeck  v.  Bierl  [Iowa]  67  N.  W.  400;  Crosby  v.  Hum- 
phreys [Minn.]  60  N.  W.  843;  Sorgenfrei  v.  Schroeder,  75  111.  397.) 


(147  Mass.  580,  18  N.  E.  465.) 

DUPEE   v.   LENTINE. 
(Supreme  Judicial  Court  of  Massachusetts.    Suffolk.    November  15,  1888.) 

ASSAULT  AND  BATTERY— PROVOCATION  IN  MITIGATION— INSULTS. 

In  an  action  for  damages  for  assault  and  battery,  evidence  that  three 

hours  before  the  alleged  assault  plaintiff  insulted  defendant's  wife,  and 

that  defendant  only  learned  of  it  ten  minutes  before  the  assault,  is  inad- 

•  missible,  as  not  being  a  provocation  occurring  at  the  time  of  the  assault, 

and  constituting  no  part  of  the  transaction. 

Exceptions  from  Superior  Court,  Suffolk  County;  Albert  Mason, 
Judge. 


206  LAW  OF  TORTS. 

Tort  to  recover  damages  for  an  assault  and  battery.  At  the  trial 
in  the  superior  court  the  defendant  offered  to  show  that  the  plain- 
tiff indecently  insulted  defendant's  wife  at  4  o'clock  p.  m.,  at  defend- 
ant's store,  on  the  day  of  the  assault,  while  defendant  was  absent; 
and  that  defendant  was  informed  of  the  insult  to  his  wife  after  his 
return,  and  only  10  minutes  before  the  assault,  which  took  place 
about  7  p.  m.  The  court  excluded  the  evidence,  the  jury  returned  a 
verdict  of  $400  for  the  plaintiff,  and  the  defendant  excepted. 

PER  CURIAM.  It  is  the  settled  rule  in  this  commonwealth  that, 
in  an  action  for  an  assault  and  battery,  previous  provocation  is  not 
admissible  in  mitigation  of  damages.  Provocation  cannot  be  shown 
unless  it  is  so  recent  and  immediate  as  to  form  part  of  the  trans- 
action. In  other  words,  to  be  admissible,  it  must  be  provocation 
happening  at  the  time  of  the  assault.  Mowry  v.  Smith,  9  Allen, 
67;  Tyson  v.  Booth,  100  Mass.  258;  Bonino  v.  Caledonio,  144  Mass. 
299,  ii  N.  E.  98.  In  the  case  at  bar,  the  court,  therefore,  rightly 
rejected  the  evidence  offered  by  the  defendant  to  show  provocation 
by  the  previous  act  of  the  plaintiff  in  insulting  the  defendant's  wife. 
It  was  not  a  provocation  occurring  at  the  time  of  the  assault,  and 
formed  no  part  of  th'e  transaction. 

Exceptions  overruled. 

(See,  to  the  same  effect,  Collins  v.  Todd,  17  Mo.  537;  Thrall  v.  Knapp,  17 
Iowa,  468;  Coxe  v.  Whitney,  9  Mo.  531;  Heiser  v.  Loomis,  47  Mich.  16,  10 
N.  W.  60 ;  Suggs  v.  Anderson,  12  Ga.  461.) 


B.  Rightful  expulsion  by  carrier  of  passengers. 

(43  111.  420,  92  Am.  Dec.  138.) 

ILLINOIS  CENT.  R.  CO.  et  al.  v.  WHITTEMORE. 
(Supreme  Court  of  Illinois.     April  Term,  1807.) 

1.  JUSTIFIABLE  OB  EXCUSABLE  ASSAULT— CARRIER— EXPULSION  OF  PASSENGER. 

A  rule  of  a  railroad  company  requiring  passengers  to  surrender  their 
tickets  on  the  trains  is  a  reasonable  regulation,  and,  for  a  wanton  refusal 
to  comply  therewith,  the  company  may  expel  the  passenger  from  the  train, 
using  no  more  force  than  is  necessary  for  the  purpose,  and  not  selecting 
a  dangerous  or  inconvenient  place. 

2.  SAME. 

The  statute  of  Illinois  forbidding  railroad  companies  to  expel  passen- 
gers from  their  trains  for  non-payment  of  fare,  at  any  place  other  than 
a  regular  station,  does  not  apply  to  such  a  case;  a  refusal  to  surrender 
a  ticket,  for  which  the  requisite  fare  has  been  paid,  is  not  the  same  offense 
as  a  refusal  to  pay  fare. 


ASSAULT  AND  BATTERY.  207 

3.  SAMB— REASONABLE  REGXTLATION— QUESTION  OF  LAW. 

The  question  whether  a  regulation  of  a  railroad  company  requiring  pas- 
sengers to  surrender  their  tickets  is  reasonable  is  for  the  court,  either  with 
or  without  testimony  on  the  subject;  to  submit  it  to  the  jury  is  error. 

Appeal  from  Circuit  Court,  Marshall  County;  Samuel  L.  Rich- 
mond, Judge. 

LAWRENCE,  J.  This  was  an  action  ot  trespass,  brought  by 
Whittemore  against  the  Illinois  Central  Railroad  Company  and  N. 
W.  Cole,  a  conductor  in  the  service  of  the  company,  for  wrongfully 
expelling  the  plaintiff  from  a  train,  'it  appears  the  plaintiff  had 
taken  passage  from  Decatur  to  El  Paso,  and  had  procured  the  neces- 
sary ticket.  After  the  train  passed  Kappa,  the  station  preceding 
El  Paso,  the  conductor  demanded  plaintiff's  ticket,  which  the  lat- 
ter refused  to  surrender  without  a  check.  This  the  conductor  re- 
fused to  give,  and,  after  some  controversy  with  the  plaintiff,  stopped 
the  train,  and,  with  the  aid  of  a  brakeman,  expelled  the  plaintiff. 
There  is  considerable  evidence  in  the  record  given  for  the  purpose 
of  showing  that,  even  admitting  the  right  of  the  defendants  to  ex- 
pel the  plaintiff,  an  unnecessary  and  wanton  degree  of  violence  was 
used,  from  which  the  plaintiff  received  a  permanent  and  severe  in- 
jury. As,  however,  the  case  must  be  submitted  to  another  jury, 
we  forbear  from  any  comments  on  this  portion  of  it.  The  jury  gave 
the  plaintiff  a  verdict  for  $3,125,  for  which  the  court  rendered  judg- 
ment, and  the  defendants  appealed.  In  sustaining  a  demurrer  to  the 
fourth  plea,  and  in  giving  the  instructions,  the  circuit  court  held 
that,  although  the  rules  of  the  road  required  the  conductor  to  take 
up  the  plaintiff's  ticket,  and  notwithstanding  he  may  have  refused 
to  surrender  it  when  demanded,  the  defendants  had  no  right  to  ex- 
pel him  from  the  cars,  except  at  a  regular  station.  In  support  of 
this  position,  it  is  urged  by  counsel  for  appellee  that  the  refusal 
to  surrender  the  ticket  was  merely  equivalent  to  a  refusal  to  pay 
the  fare,  and  that  the  statutory  prohibition  against  the  expulsion 
of  passengers  for  this  cause,  except  at  a  regular  station,  should  be 
applied  to  cases  like  the  present.  We  held  in  the  case  of  Railroad 
v.  Flagg,  (decided  at  the  January  term,  1867,  43  111.  364,  92  Am. 
Dec.  133)  that  the  neglect  to  buy  a  ticket  before  entering  the  train, 
when  required  by  the  rules  of  the  road,  was  the  same  thing,  in 
substance,  as  the  refusal  to  pay  the  fare,  and  justified  an  expul- 
sion only  at  a  regular  station.  But  the  refusal  to  surrender  a  ticket, 
for  which  the  requisite  fare  has  already  been  paid,  is  certainly  not 
the  same  thing  as  refusal  to  pay  the  fare.  It  may  be  no  worse  of- 
fense against  the  rights  of  the  railroad  company  than  the  refusal 
to  pay  the  fare,  but  it  is  not  the  same  offense.  Perhaps  there  was 
no  good  reason  why  the  legislature  should  have  forbidden  railways 
to  expel  a  passenger  only  at  a  regular  station  for  the  non-payment 


208  LAW  OF  TORTS. 

of  fare,  and  have  left  them  at  liberty  to  expel  one  at  any  other 
point,  for  the  disregard  of  any  other  reasonable  rule.  But  it  has 
done  so,  and  it  is  our  duty  to  leave  the  law  as  the  legislature  thought 
proper  to  establish  it.  What,  then,  is  the  right  of  a  railway  com- 
pany in  reference  to  its  passengers?  Clearly,  to  require  of  them 
the  observance  of  all  such  reasonable  rules  as  tend  to  promote  the 
comfort  and  convenience  of  the  passengers,  to  preserve  good  order 
and  propriety  of  behavior,  to  secure  the  safety  of  the  train,  and  to 
enable  the  company  to  conduct  its  business  as  a  common  carrier, 
with  advantage  to  the  public  and  to  itself.  So  long  as  such  reasona- 
ble rules  are  observed  by  a  passenger,  the  company  is  bound  to 
carry  him,  but,  if  they  are  wantonly  disregarded,  that  obligation 
ceases,  and  the  company  may  at  once  expel  him  from  the  train, 
using  no  more  force  than  may  be  necessary  for  that  purpose,  and 
not  selecting  a  dangerous  or  inconvenient  place.  This  is  a  common- 
law  right,  arising  from  the  nature  of  their  contract  and  occupation 
as  common  carriers,  and,  as  already  remarked,  it  has  been  restricted 
by  the  legislature  only  in  cases  where  the  offense  consists  in  non- 
payment of  fare.  Railroad  Co.  v.  Parks,  18  111.  460,  68  Am.  Dec. 
562 ;  Milliard  v.  Goold,  34  N.  H.  230,  66  Am.  Dec.  765 ;  Cheney  v. 
Railroad  Co.,  n  Mete.  121,  45  Am.  Dec.  190.  If,  then,  the  regula- 
tion requiring  passengers  to  surrender  their  tickets  was  a  reasona- 
ble one,  the  ruling  of  the  court  below  on  this  point  was  erroneous. 

That  the  rule  is  a  reasonable  one  really  admits  of  no  controversy. 
It  was  shown  by  witnesses  on  the  trial,  and  must  be  apparent  to 
any  one,  that  the  company  must  have  the  right  to  require  the  sur- 
render of  tickets,  in  order  to  guard  itself  against  imposition  and 
fraud,  and  to  preserve  the  requisite  method  and  accuracy  in  the 
management  of  its  passenger  department.  The  circuit  court  left 
it  to  the  jury  to  say  whether  the  rule  was  reasonable.  This  was  er- 
ror. It  was  proper  to  admit  testimony,  as  was  done ;  but,  either 
with  or  without  this  testimony,  it  was  for  the  court  to  say  whether 
the  regulation  was  reasonable,  and  therefore  obligatory  upon  the 
passenger.  The  necessity  of  holding  this  to  be  a  question  of  law, 
and  therefore  within  the  province  of  the  court  to  settle,  is  apparent 
from  the  consideration  that  it  is  only  by  so  holding  that  fixed  and 
permanent  regulations  can  be  established.  If  this  question  is  to  be 
left  to  juries,  one  rule  would  be  applied  by  them  to-day  and  another 
to-morrow.  In  one  trial  a  railway  would  be  held  liable,  and  in  an- 
other, presenting  the  same  question,  not  liable.  Neither  the  compa- 
nies nor  passengers  would  know  their  rights  or  their  obligations. 
A  fixed  system  for  the  control  of  the  vast  interests  connected  with 
railways  would  be  impossible,  while  such  a  system  is  essential  equally 
to  the  roads  and  to  the  public.  A  similar  view  has  recently  been 
taken  of  this  question  in  the  case  of  Vedder  v.  Fellows,  20  N.  Y. 
126.  The  judgment  must  be  reversed;  but  if  it  appears,  upon  an- 


ASSAULT  AND  BATTERY.  209 

other  trial,  that  unnecessary  violence  was  used,  the  defendants  must 
respond  in  damages. 
Judgment  reversed. 

(These  rules  are  well  sustained:  [1]  A  passenger  may  be  expelled  from 
the  train  by  reasonable  force  [a]  for  refusing  to  exhibit  his  ticket  when  re- 
quired [Hibbard  v.  New  York  &  E.  R.  Co.,  15  N.  Y.  455];  [b]  for  refusal  to 
pay  fare  when  he  has  no  ticket,  or  only  a  worthless  or  expired  ticket,  etc. 
CMcGarry  v.  Holyoke  St  R.  Co.,  182  Mass.  123,  65  N.  E.  45;  Bradshaw  v. 
South  Boston  R.  Co.,  135  Mass.  407,  46  Am.  Rep.  481;  State  v.  Goold,  53  Me. 
279 ;  Jerome  v.  Smith,  48  Vt.  230,  21  Am.  Rep.  125 ;  Monnier  v.  New  York  Cent 
&  H.  R.  R.  Co.,  175  N.  Y.  281,  67  N.  E.  569,  62  L.  R.  A.  357 ;  Jardine  v.  Cornell, 
uO  N.  J.  Law,  485,  14  Atl.  590;  Railroad  Co.  v.  Skillman,  39  Ohio  St.  444; 
United  Railways  &  Electric  Co.  v.  Hardesty,  94  Md.  661,  51  Atl.  406,  57  L.  R. 
A.  275;  Everett  v.  Chicago,  R.  I.  &  P.  R.  Co.,  69  Iowa,  15,  28  N.  W.  410,  58 
Am.  Rep.  207];  [c]  or  for  violation  of  any  reasonable  rules  of  the  company 
[Monnier  v.  New  York  Cent.  &  H.  R.  R.  Co.,  175  N.  Y.  281,  67  N.  E.  569,  62 
L.  R.  A.  357].  [2]  Whether  the  rules  are  reasonable  or  not  is  a  question  of 
law  for  the  court,  and  not  of  fact  for  the  jury,  when  the  facts  in  the  case  are 
undisputed.  A  very  v.  New  York  Cent  &  H.  R.  R.  Co.,  121  N.  Y.  31,  24  N.  E. 
20;  Pittsburgh,  C.  &  St.  L.  R.  Co.  v.  Lyon,  123  Pa.  140,  16  Atl.  607,  2  L.  R.  A. 
489,  10  Am.  St.  Rep.  517.  [3]  Unless  a  statute  has  changed  the  common-law 
rule  [and  this  has  been  done  in  a  number  of  the  states],  the  person  expelled 
need  not  be  put  off  at  a  station  or  regular  stopping  place,  but  may  be  put  off 
at  any  place  which  will  not  expose  him  to  serious  injury  or  danger.  Wyman 
v.  Northern  Pac.  R.  Co.,  34  Minn.  210,  25  N.  W.  349;  Railroad  Co.  v.  Skillman, 
39  Ohio  St.  444;  Loomis  v.  Jewett,  35  Hun,  313;  Stephen  v.  Smith,  29  Vt.  160. 
[4]  If  excessive  force  be  used  in  expulsion,  or  if  the  forcible  expulsion  be 
wholly  wrongful,  the  passenger  may  recover  for  assault  and  battery.  Phila- 
delphia, W.  &  B.  R.  Co.  v.  Rice,  64  Md.  63,  21  Atl.  97;  New  York,  L.  E.  &  W. 
R.  Co.  v.  Haring,  47  N.  J.  Law,  137,  54  Am.  Rep.  123;  Chicago,  St  L.  &  P.  R. 
Co.  v.  Bills,  104  Ind.  13,  3  N.  E.  611.  [5]  A  passenger  may  also  resist  by  force 
an  unlawful  expulsion  or  one  that  is  dangerous  to  his  life  or  bodily  safety, 
as,  e.  g.,  when  the  train  is  in  motion.  English  v.  Delaware  &  H.  Canal  Co., 
66  N.  Y.  455.  23  Am.  Rep.  69;  New  York,  L.  E.  &  W.  R.  Co.  v.  Winter's  Adm'r, 
143  U.  S.  60.  12  Sup.  Ct  356,  36  L.  Ed.  71.  [6]  It  is  a  general  rule  that  an 
action  is  maintainable  against  a  corporation  for  assault  and  battery.  Brokaw 
v.  New  Jersey  R.  &  Transp.  Co.,  32  N.  J.  Law,  328,  90  Am.  Dec.  659;  Dwinelle 
v.  New  York  Cent.  &  H.  R.  R.  Co.,  120  N.  Y.  117,  24  N.  E.  319,  8  L.  R.  A.  224, 
17  Am.  St  Rep.  611.) 


C.  Discipline  of  children,  pupils,  etc. 

(53  Conn.  481,  2  Atl.  841.) 

SHEEHAN  v.  STURGES. 

(Supreme  Court  of  Errors  of  Connecticut    November  24,  1885.) 

L  JUSTIFIABLE  OB  EXCUSABLE  ASSAULT — SCHOOLS — PUNISHMENT  OF  PUPIL. 

A  teacher  may  inflict  corporal  punishment  on  a  pupil,  if  necessary  to 
enforce  compliance  by  the  pupil  with  proper  rules  for  the  good  conduct 
and  order  of  the  school;  but  he  must  exercise  sound  discretion  and  judg- 
ment, and  the  punishment  should  be  adapted,  not  only  to  the  offense,  but 
to  the  offender. 

CHASE  (2o  Ed.)— 14 


210  LAW  OF  TORTS. 

2.  SAME— ACTION  FOB  ASSAULT  AND  BATTERY— QUESTION  OF  FACT. 

In  an  action  against  a  teacher  for  an  assault  and  battery  in  whipping 
a  pupil,  the  extent  and  reasonableness  of  the  punishment  is  purely  a  ques- 
tion of  fact. 

3.  SAME— EVIDENCE. 

In  such  an  action,  evidence  of  habitual  misconduct  of  the  pupil  prior 
to  the  punishment  is  admissible  on  behalf  of  defendant 

Appeal  from  Superior  Court,  Fairfield  County;  Beardsley,  Judge. 
Action  for  assault  and  battery.     Judgment  was  rendered  for  de- 
fendant.    Plaintiff  appealed  from  the  judgment. 

GRANGER,  J.  This  is  a  complaint  for  an  assault  and  battery. 
The  defense  is  that  the  plaintiff  was  at  the  time  a  pupil  in  a  school 
kept  by  the  defendant;  that  he  willfully  violated  the  reasonable 
rules  of  the  school,  and  disobeyed  the  reasonable  commands  of  the 
defendant  as  his  teacher;  and  that  for  this  misconduct  the  defend- 
ant, as  such  teacher,  whipped  him  in  a  reasonable  manner.  The 
sole  controversy  upon  the  trial  was  as  to  the  reasonableness  of  the 
punishment  inflicted.  The  court  found  that  "such  whipping  was 
not  unreasonable  or  excessive,  and  was  fully  justified  by  the  plaintiff's 
misconduct  at  that  time."  The  extent  and  reasonableness  of  the  pun- 
ishment administered  by  a  teacher  to  his  pupil  is  purely  a  question 
of  fact.  This  is  too  well  settled  to  make  the  citation  of  authorities 
necessary.  The  finding  of  the  court,  therefore,  settles  the  question 
as  to  this,  unless  the  court  acted  upon  improper  evidence. 

The  plaintiff  testified  as  a  witness  in  his  own  behalf,  and  on  his 
cross-examination  the  defendant,  against  the  objection  of  the  plaintiff's 
counsel,  was  allowed  to  ask  him  whether,  on  two  former  occasions, 
both  of  them  more  than  a  week  before  the  whipping  in  question,  he 
had  not  assaulted  the  teacher  while  he  was  chastising  him.  And  the 
defendant  afterwards  in  his  testimony  in  his  own  behalf  was  allowed, 
against  the  objection  of  the  plaintiff,  to  state  that  the  plaintiff's  con- 
duct in  school  was  habitually  bad,  and  that  on  two  former  occasions, 
one  of  them  about  two  weeks  and  the  other  seven  or  eight  days  before 
the  whipping  in  question  the  plaintiff  had  assaulted  him  while  he  was 
chastising  him.  The  defendant  was  also  allowed,  on  the  plaintiff's 
cross-examination,  against  objection,  to  inquire  of  him  whether  he 
had  not,  seven  or  eight  days  before  the  whipping  in  question,  put 
stones  in  his  pocket,  and  declared  that  he  was  going  to  attack  the 
teacher  with  them.  The  plaintiff,  in  answer  to  the  inquiry,  denied 
that  he  had  done  so;  and  the  defendant,  against  the  plaintiff's  objec- 
tion, was  allowed  to  show  by  a  witness  that  the  plaintiff  had  so  done. 
The  defendant  did  not  inform  the  plaintiff,  at  the  time  of  the  whip- 
ping, that  he  was  punishing  him  for  his  past  and  habitual  misconduct. 
We  think  that  the  court  committed  no  error  in  admitting  the  inquiries 
and  evidence.  The  right  pf  the  school-master  to  require  obedience 
to  reasonable  rules  and  a  proper  submission  to  his  authority,  and  to  in- 


ASSAULT  AND  BATTERY.  211 

flict  corporal  punishment  for  disobedience,  is  well  settled.  It  is 
said  in  the  Encyclopedia  of  Education,  edited  by  Kiddle  &  Schem, 
page  189,  that  "the  school  codes  of  the  United  States  are  generally 
silent  in  regard  to  the  right  of  teachers  to  inflict  corporal  punish- 
ment, and  there  are  numerous  judicial  decisions  in  favor  of  this 
right.  By  English  and  American  law  a  parent  may  correct  his  child 
in  a  reasonable  manner,  and  the  teacher  is  in  loco  parentis ;"  cit- 
ing 2  Kent,  Comm.  203 ;  I  Bl.  Comm.  453 ;  Comm.  v.  Randall,  4  Gray, 
36;  State  v.  Pendergrass,  19  N.  C:  365,  31  Am.  Dec.  416;  Stevens  v. 
Fassett,  27  Me.  280;  Lander  v.  Seaver,  32  Vt.  123,  76  Am.  Dec.  156. 
As  incident  to  this  relationship,  it  is  the  right  of  the  teacher,  in 
the  absence  of  rules  established  by  the  school  board  or  other  proper 
authority,  to  make  all  necessary  and  proper  rules  for  the  good 
conduct  and  order  of  the  school ;  and  it  is  his  duty  to  see  that  order 
is  maintained  and  the  rules  observed ;  and  if  any  scholar  violates  the 
rules,  and  disobeys  the  orders  of  the  teacher,  it  is  the  duty  of  the 
latter  to  enforce  compliance,  and  to  that  end  it  may  be  necessary 
to  inflict  personal  chastisement,  as  without  it  he  might  lose  all  con- 
trol of  the  school.  In  inflicting  such  punishment  the  teacher  must 
exercise  sound  discretion  and  judgment,  and  must  adapt  it,  not 
only  to  the  offense,  but  to  the  offender.  Horace  Mann,  a  high  au- 
thority in  the  matter  of  schools,  says  of  corporal  punishment:  "It 
should  be  rese-  -ed  for  baser  faults.  It  is  a  coarse  remedy,  and 
should  be  employed  upon  the  coarse  sins  of  our  animal  nature,  and, 
when  employed  at  all,  should  be  administered  in  strong  doses."  Of 
course  the  teacher,  in  inflicting  such  punishment,  must  not  exceed 
the  bounds  of  moderation.  No  precise  rule  can  be  laid  down  as 
to  what  shall  be  considered  excessive  or  unreasonable  punishment. 
Reeve,  Dom.  Rel.  288.  Each  case  must  depend  upon  its  own  cir- 
cumstances. In  Comm.  v.  Randall,  4  Gray,  36,  it  is  held  that  "in  in- 
flicting corporal  punishment  a  teacher  must  exercise  reasonable 
judgment  and  discretion,  and  be  governed  as  to  the  mode  and 
severity  of  the  punishment  by  the  nature  of  the  offense,  and  the  age, 
size,  and  apparent  powers  of  endurance  of  the  pupil."  And  we  think 
it  equally  clear  that  he  should  also  take  into  consideration  the  mental 
and  moral  qualities  of  the  pupil ;  and,  as  indicative  of  these,  his  gen- 
eral behavior  in  school  and  his  attitude  towards  his  teacher  become 
proper  subjects  of  consideration.  We  think,  therefore,  that  the 
court  acted  properly  in  admitting  evidence  of  the  prior  and  habitual 
misconduct  of  the  plaintiff,  and  that  it  was  perfectly  proper  for  the 
defendant,  in  chastising  him,  to  consider,  not  merely  the  immediate 
offense  which  had  called  for  the  punishment,  but  the  past  offenses 
that  aggravated  the  present  one,  and  showed  the  plaintiff  to  have 
been  habitually  refractory  and  disobedient.  Nor  was  it  necessary 
that  the  teacher  should,  at  the  time  of  inflicting  the  punishment,  re- 
mind the  pupil  of  his  past  and  accumulating  offenses.  The  pupil 


212  LAW  OF  TORTS. 

knew  them  well  enough,  without  having  them  brought  freshly  to  his 
notice.     There  is  no  error. 
The  other  judges  concurred. 

(See  also  as  to  teachers,  Patterson  v.  Nutter,  78  Me.  509,  7  Atl.  273,  57  Am. 
Rep.  818;  Van  Vactor  v.  State,  113  Ind.  276,  15  N.  B.  341,  3  Am.  St.  Rep.  645; 
State  v.  Mizner,  45  Iowa,  248,  24  Am.  Rep.  769;  Heritage  v.  Dodge,  64  N.  H. 
297,  9  Atl.  722;  Boyd  v.  State,  88  Ala.  169,  7  South.  268,  16  Am.  St.  Rep.  31; 
Danenhoffer  v.  State,  69  Ind.  295,  35  Am.  Rep.  216;  Id.,  79  Ind.  75;  Cleary 
v.  Booth  [1893]  1  Q.  B.  465.  It  has  been  held  in  some  states  that  a  civil  ac- 
tion will  not  lie  by  a  child  against  its' parent  for  excessive  severity  in  punish- 
ment, but  that  the  parent  can  only  be  proceeded  against  criminally  [McKel- 
vey  v.  McKelvey  (Tenn.)  77  S.  W.  664;  Hewelett  v.  George,  68  Miss.  703,  9 
South.  885,  13  L.  R.  A.  682];  but  a  civil  action  against  a  stepmother  has  been 
sustained  [Treschman  v.  Treschman,  28  Ind.  App.  206,  61  N.  E.  961];  and 
against  an  aunt  acting  in  loco  parentis  [Clasen  v.  Pruhs  (Neb.)  95  N.  W.  640]. 
As  to  the  criminal  liability  of  parents,  or  persons  in  loco  parentis,  see  Id. ; 
Dean  v.  State,  89  Ala.  46,  8  South.  38;  State  v.  Jones,  95  N.  C.  588,  59  Am. 
Rep.  282;  Hinkle  v.  State,  127  Ind.  490,  26  N.  B.  777;  Fletcher  v.  People,  52 
111.  395.) 


D.  Act  of  Dublic  officer  in  performance  of  official  duty. 

(20  Barb.  16.) 

HAGER  et  al.  v.  DANFORTH. 
(Supreme  Court  of  New  York.     Albany,  General  Term.     September  4,  1854.) 

JUSTIFIABLE  OB  EXCUSABLE  ASSAULT— SERVICE  OF  PEOCESS. 

Defendant  went  to  the  house  of  plaintiffs,  who  were  husband  and  wife, 
to  serve  on  the  husband,  who  was  in  the  house,  a  subpoena  in  a  suit  then 
pending,  and,  finding  a  door  open,  entered  peaceably;  but  the  wife  order- 
ed him  out,  and  resisted  him  in  attempting  to  proceed  to  the  stairs,  in 
search  for  the  husband,  although  he  told  her  he  had  a  subpoena  to  serve. 
Held,  that  defendant  was  in  the  house  under  a  legal  license,  and  it  was 
not  his  duty  to  leave  when  ordered  to  do  so  by  the  wife;  and  that  he 
had  a  right  to  use  such  force  as  was  necessary  to  overcome  her  unlawful 
resistance  to  the  service  of  the  subpoena,  and  was  liable  only  for  any 
excess  of  violence  used  by  him. 

Appeal  from  Special  Term. 

Action  by  Daniel  J.  Hager  and  wife  for  an  assault  and  battery 
alleged  to  have  been  committed  upon  the  wife  by  defendant.  It  ap- 
peared that  a  previous  action  had  been  brought  before  a  justice 
of  the  peace  by  Danforth,  the  defendant  in  this  action,  against  the 
plaintiff  Daniel  J.  Hager ;  that  on  the  day  on  which  that  action  was 
to  be  tried,  Danforth,  having  procured  from  the  justice  a  subpoena 
for  Hager  as  a  witness  therein,  went  to  Hager's  house  for  the  pur- 
pose of  serving  it;  that  he  found  a  door  open,  and  entered,  but 
was  met  and  resisted  by  Mrs.  Hager,  who  ordered  him  out  of  the 
house ;  that  Danforth  replied  to  her  that  he  had  a  subpoena  to  serve 
on  Hager,  and,  Hager  being  upstairs  at  the  time,  Danforth  at- 


ASSAULT   AND   BATTEUY.  213 

tempted  to  force  his  way  to  the  stairs,  against  the  resistance  of  Mrs. 
Hager,  and  in  doing  so  choked  her  and  threw  her  back  against  the 
catch  of  a  door,  slightly  bruising  her;  and  that  thereafter  Hager 
came  downstairs,  and  Danforth  then  served  the  subpoena  upon  him, 
and  soon  after  left  the  house.  The  judge  charged  the  jury  that  a 
license  to  enter  the  house  for  the  purpose  of  serving  the  subpoena 
was  implied,  but  that  "after  Mrs.  Hager  had  ordered  the  defendant 
out,  the  subpoena  was  not  a  justification  or  protection  to  him  in 
pressing  forward,  and,  when  resisted  in  his  advance,  usjng  force  to 
serve  it."  To  this  part  of  the  charge  defendant  excepted.  The 
jury  found  a  verdict  for  plaintiffs  for  $250.  Defendant  moved  upon 
a  case  for  a  new  trial,  which  motion  was  denied,  and  from  the  order 
denying  a  new  trial  defendant  appealed  to  the  general  term. 

Before  WRIGHT,  HARRIS,  and  WATSON,  Justices. 

HARRIS,  J.  The  defendant  went  to  the  plaintiffs'  house  with 
process  which  he  was  authorized  by  law  to  serve.  2  Rev.  St.  p.  240, 
§  82.  The  person  upon  whom  he  was  to  make  the  service  was  in 
the  house.  These  facts  amounted  to  a  legal  license,  and  having 
found  the  door  open,  and  entered  peaceably,  the  defendant  was  law- 
fully there.  Deriving  his  authority  to  be  there  from  the  law,  and 
not  from  the  consent  of  the  plaintiffs,  he  was  under  no  obligation  to 
obey  Mrs.  Hager  when  she  ordered  him  to  leave.  Not  having  con- 
ferred upon  him  his  license,  she  had  no  power  to  revoke  it.  He  was 
as  rightfully  there  after  he  had  been  directed  to  leave  as  before.  I 
know  of  no  duty  which  bound  him  to  desist  from  the  execution  of 
the  lawful  purpose  which  had  brought  him  there.  If  his  taste  led 
him  to  encounter  the  vituperation  and  violence  of  such  a  woman 
as  he  met  there,  it  was  his  right  to  do  so.  To  the  extent,  therefore, 
that  the  force  used  by  the  defendant  was  necessary  to  overcome  the 
unlawful  resistance  he  met  in  the  service  of  the  subpoena,  it  was 
lawful.  Mrs.  Hager  was  the  wrong-doer,  and  not  the  defendant. 
If  he  used  more  force  than  was  necessary  to  enable  him  to  accom- 
plish his  purpose,  to  that  extent  he  is  liable  as  a  wrong-doer.  The 
jury  were  led  to  understand,  upon  the  trial,  that,  after  Mrs.  Hager 
had  ordered  the  defendant  out,  the  subpoena  furnished  him  no  jus- 
tification or  protection.  In  effect,  they  were  instructed  that,  by  re- 
maining after  having  been  ordered  to  leave,  the  defendant  became 
a  trespasser.  In  this  they  were  misled,  and  the  result  was  a  verdict 
against  the  defendant  to  an  amount  entirely  unwarranted  by  the  evi- 
dence. The  jury  ought  to  have  been  told  that,  inasmuch  as  the  de- 
fendant had  entered  the  house  in  a  peaceable  manner,  under  a  li- 
cense given  him  by  law,  he  had  a  right  to  remain  there  until  he 
had  effected  the  service  of  the  subpoena;  that  Mrs.  Hager,  by  re- 
«isting  the  defendant  in  making  such  service,  was  herself  guilty  of 


214  LAW  OF  TORTS. 

an  unlawful  act ;  and  that  the  defendant  was  justified,  notwithstanding 
such  resistance,  in  using  all  the  force  necessary  to  enable  him  to 
serve  the  subpoena;  and  that  he  was  only  liable  for  any  excess  of 
violence  used  by  him  more  than  was  necessary  to  overcome  the  re- 
sistance with -which  he  met.  I  am  of  opinion,  therefore,  that  the 
order  of  the  special  term  should  be  reversed,  and  that  a  new  trial 
should  be  granted,  with  costs  to  abide  the  event. 

(Compare  Hull  v.  Bartlett,  49  Conn.  64;  Delafoile  v.  State,  54  N.  J.  Law, 
381,  24  Atl.  557,  16  L.  R.  A.  500.  An  officer  may  use  such  force  as  is  neces- 
sary in  making  a  lawful  arrest.  Shovlin  v.  Comm.,  106  Pa.  369.  He  has  no 
right,  however,  to  break  the  outer  door  of  a  dwelling  In  the  execution  of  civil 
process.  Curtis  v.  Hubbard,  1  Hill,  336,  4  Hill,  437. 


FALSE  IMPRISONMENT. 


What  constitutes  false  imprisonment. 

(7  Adol.  &  E.  [N.  S.]  *742.) 

BIRD  v.  JONES  (in  part). 

(Court  of  Queen's  Bench.     July  9,  1845.) 

FALSE  IMPRISONMENT — WHAT  CONSTITUTES  IMPRISONMENT. 

Plaintiff,  attempting  to  pass  in  a  particular  direction  along  part  of  a 
public  highway  which  had  been  inclosed  by  defendant,  was  obstructed 
by  the  latter,  who  prevented  him  from  proceeding  in  that  direction,  but 
left  him  at  liberty  to  go  in  another  direction.  Held,  that  there  was  no 
imprisonment  on  which  plaintiff  could  maintain  an  action  for  false  im- 
prisonment 

Rule  nisi  for  new  trial. 

Action  of  trespass  for  assault  and  false  imprisonment.  At  the 
trial,  before  Denman,  C.  J.,  the  jury  found  a  verdict  for  plaintiff. 
Defendant  obtained  a  rule  nisi  for  a  new  trial,  on  the  ground  of  mis- 
direction, consisting  of  a  statement  by  the  chief  justice  to  the  jury 
at  the  trial  that  an  imprisonment  of  plaintiff  had  taken  place  before 
plaintiff  assaulted  defendant. 

COLERIDGE,  J.  In  this  case,  in  which  we  have  unfortunately 
been  unable  to  agree  in  our  judgment,  I  am  now  to  pronounce  the 
opinion  which  I  have  formed;  and  I  shall  be  able  to  do  so  very 
briefly,  because,  having  had  the  opportunity  of  reading  a  judgment 
prepared  by  my  Brother  Patteson,  and  entirely  agreeing  with  it,  I 
may  content  myself  with  referring  to  the  statement  he  has  made 


FALSE   IMPRISONMENT.  215 

in  detail  of  those  preliminary  points  in  which  we  all,  I  believe,  agree, 
and  which  bring  the  case  up  to  that  point  upon  which  its  decision 
must  certainly  turn,  and  with  regard  to  which  our  difference  exists. 
This  point  is  whether  certain  facts,  which  may  be  taken  as  clear 
upon  the  evidence,  amount  to  an  imprisonment.  These  facts,  stated 
shortly,  and  as  I  understand  them,  are,  in  effect,  as  follows : 

A  part  of  a  public  highway  was  inclosed,  and  appropriated  for 
spectators  of  a  boat-race,  paying  a  price  for  their  seats.  The  plain- 
tiff was  desirous  of  entering  this  part,  and  was  opposed  by  the  de- 
fendant; but,  after  a  struggle,  during  which  a  momentary  detention 
of  his  person  took  place,  he  succeeded  in  climbing  over  the  inclosure. 
Two  policemen  were  then  stationed  by  the  defendant  to  prevent, 
and  they  did  prevent,  him  from  passing  onwards  in  the  direction 
in  which  he  declared  his  wish  to  go;  but  he  was  allowed  to  remain 
unmolested  where  he  was,  and  was  at  liberty  to  go,  and  was  told 
that  he  was  so,  in  the  only  other  direction  by  which  he  could  pass. 
This  he  refused  for  some  time,  and,  during  that  time,  remained 
where  he  had  thus  placed  himself. 

These  are  the  facts,  and,  setting  aside  those  which  do  not  properly 
bear  on  the  question  now  at  issue,  there  will  remain  these :  That 
the  plaintiff,  being  in  a  public  highway  and  desirous  of  passing 
along  it,  in  a  particular  direction,  is  prevented  from  doing  so  by 
the  orders  of  the  defendant,  and  that  the  defendant's  agents  for 
the  purpose  are  policemen,  from  whom,  indeed,  no  unnecessary 
violence  was  to  be  anticipated,  or  such  as  they  believed  unlawful, 
yet  who  might  be  expected  to  execute  such  commands  as  they 
deemed  lawful,  with  all  necessary  force,  however  resisted.  But,  al- 
though thus  obstructed,  the  plaintiff  was  at  liberty  to  move  his 
person,  and  go  in  any  other  direction,  at  his  free  will  and  pleasure, 
and  no  actual  force  or  restraint  on  his  person  was  used,  unless  the 
obstruction  before  mentioned  amounts  to  so  much.  I  lay  out  of 
consideration  the  question  of  right  or  wrong  between  these  par- 
ties. The  acts  will  amount  to  imprisonment,  neither  more  nor  less, 
from  their  being  wrongful  or  capable  of  justification.  And  I  am 
of  opinion  that  there  was  no  imprisonment.  To  call  it  so  appears 
to  me  to  confound  partial  obstruction  and  disturbance  with  total 
obstruction  and  detention.  A  prison  may  have  its  boundary,  large 
or  narrow,  visible  and  tangible,  or,  though  real,  still  in  the  concep- 
tion only ;  it  may  itself  be  movable  or  fixed ;  but  a  boundary  it  must 
have,  and  that  boundary  the  party  imprisoned  must  be  prevented 
from  passing.  He  must  be  prevented  from  leaving  that  place, 
within  the  ambit  of  which  the  party  imprisoning  would  confine  him, 
except  by  prison-breach.  Some  confusion  seems  to  me  to  arise 
from  confounding  imprisonment  of  the  body  with  mere  loss  of  free- 
dom. It  is  one  part  of  the  definition  of  freedom  to  be  able  to  go 
whithersoever  one  pleases.  But  imprisonment  is  something  more 


216  LAW  OF  TORTS. 

than  the  mere  loss  of  this  power.  It  includes  the  notion  of  re- 
straint within  some  limits  defined  by  a  will  or  power  exterior  to  our 
own. 

In  Com.  Dig.  "Imprisonment,"  (G,)  it  is  said:  "Every  restraint 
of  the  liberty  of  a  freeman  will  be  an  imprisonment."  For  this  the 
authorities  cited  are  2.  Inst.  482;  Herbert  and  Stroud's  Case,  Cro. 
Car.  210.  But,  when  these  are  referred  to,  it  will  be  seen  that  noth- 
ing was  intended  at  all  inconsistent  with  what  I  have  ventured  to 
lay  down  above.  In  both  books,  the  object  was  to  point  out  that 
a  prison  was  not  necessarily  what  is  commonly  so  called, — a  place 
locally  defined  and  appointed  for  the  reception  of  prisoners.  Lord 
Coke  is  commenting  on  the  statute  of  Westminster  2d,  (i  St.  13 
Edw.  II.  c.  48,)  "in  prisona,"  and  says :  "Every  restraint  of  the  lib- 
erty of  a  freeman  is  an  imprisonment,  although  he  be  not  within  the 
walls  of  any  common  prison." 

On  a  case  of  this  sort,  which,  if  there  be  difficulty  in  it,  is  at  least 
purely  elementary,  it  is  not  easy  nor  necessary  to  enlarge;  and  I 
am  unwilling  to  put  any  extreme  case  hypothetically ;  but  I  wish  to 
meet  one  suggestion,  which  has  been  put  as  avoiding  one  of  the 
difficulties  which  cases  of  this  sort  might  seem  to  suggest.  If  it  be 
said  that  to  hold  the  present  case  to  amount  to  an  imprisonment 
would  turn  every  obstruction  of  the  exercise  of  a  right  of  way  into 
an  imprisonment,  the  answer  is  that  there  must  be  something  like 
personal  menace  or  force  accompanying  the  act  of  obstruction, 
and  that,  with  this,  it  will  amount  to  imprisonment.  I  apprehend 
that  is  not  so.  If,  in  the  course  of  a  night,  both  ends  of  a  street 
were  walled  up,  and  there  was  no  egress  from  the  house  but  into 
the  street,  I  should  have  no  difficulty  in  saying  that  the  inhabitants 
were  thereby  imprisoned;  but  if  only  one  end  were  walled  up,  and 
an  armed  force  stationed  outside  to  prevent  any  scaling  of  the  wall 
or  passage  that  way,  I  should  feel  equally  clear  that  there  was  no 
imprisonment.  If  there  were,  the  street  would  obviously  be  the 
prison ;  and  yet,  as  obviously,  none  would  be  confined  to  it. 

According  to  my  view  of  the  case,  the  rule  should  be  absolute  for 
a  new  trial. 

WILLIAMS,  J.  A  part  of  Hammersmith  bridge,  which  is  gen- 
erally used  as  a  public  footway,  was  appropriated  for  seats  to  view 
a  regatta  on  the  river,  and  separated  for  that  purpose  from  the  car- 
riage-way by  a  temporary  fence.  The  plaintiff  insisted  upon  pass- 
ing along  the  part  so  appropriated,  and  attempted  to  climb  over  the 
fence.  The  defendant  (clerk  of  the  bridge  company)  pulled  him 
back,  but  the  plaintiff  succeeded  in  climbing  over  the  fence.  The 
defendant  then  stationed  two  policemen  to  prevent,  and  they  did 
prevent,  the  plaintiff  from  proceeding  forward  along  the  footway 
in  the  direction  he  wished  to  go.  The  plaintiff,  however,  was  at 


FALSE   IMPRISONMENT.  217 

the  same  time  told  that  he  might  go  back  into  the  carriage-way, 
and  proceed  to  the  other  side  of  the  bridge,  if  he  pleased.  The 
plaintiff  refused  to  do  so,  and  remained  where  he  was  so  obstructed, 
about  half  an  hour.  And,  if  a  partial  restraint  of  the  will  be  suffi- 
cient to  constitute  an  imprisonment,  such  undoubtedly  took  place. 
He  wished  to  go  in  a  particular  direction,  and  was  prevented;  but, 
at  the  same  time,  another  course  was  open  to  him. 

About  the  meaning  of  the  word  "imprisonment,"  and  the  defini- 
tions of  it  usually  given,  there  is  so  little  doubt  that  any  difference 
of  opinion  is  scarcely  possible.  Certainly,  so  far  as  I  am  aware, 
none  such  exists  upon  the  present  occasion.  The  difficulty,  what- 
ever it  may  be,  arises  when  the  general  rule  is  applied  to  the  facts 
of  a  particular  case.  "Every  confinement  of  the  person,"  according 
to  Blackstone,  (3  Bl.  Comm.  127,)  "is  an  imprisonment,  whether 
it  be  in  a  common  prison,  or  in  a  private  house,  or  in  the  stocks, 
or  even  by  forcibly  detaining  one  in  the  public  streets,"  which,  per- 
haps, may  seem  to  imply  the  application  of  force  more  than  is  really 
necessary  to  make  an  imprisonment.  Lord  Coke,  in  his  second  In- 
stitute, (2  Inst.  589,)  speaks  of  "a  prison  in  law"  and  "a  prison  in 
deed ;"  so  that  there  may  be  a  constructive,  as  well  as  an  actual, 
imprisonment;  and  therefore  it  may  be  admitted  that  personal  vio- 
lence need  not  be  used  in  order  to  amount  to  it.  "If  the  bailiff," 
as  the  case  is  put  in  Bull.  N.  P.  62,  "who  has  a  process  against  one, 
says  to  him,  'You  are  my  prisoner ;  I  have  a  writ  against  you/  upon 
which  he  submits,  turns  back,  or  goes  with  him,  though  the  bailiff 
never  touched  him,  yet  it  is  an  arrest,  because  he  submitted  to 
the  process."  So,  if  a  person  should  direct  a  constable  to  take  an- 
other in  custody,  and  that  person  should  be  told  by  the  constable 
to  go  with  him,  and  the  orders  are  obeyed,  and  they  walk  together 
in  the  direction  pointed  out  by  the  constable,  that  is  constructively 
an  imprisonment,  though  no  actual  violence  be  used.  In  such  cases, 
however,  though  little  may  be  said,  much  is  meant  and  perfectly 
understood.  The  party  addressed  in  the  manner  above  supposed 
feels  that  he  has  no  option,  no  more  power  of  going  in  any  but 
the  one  direction  prescribed  to  him,  than  if  the  constable  or  bailiff 
had  actually  hold  of  him. ,  No  return  or  deviation  from  the  course 
prescribed  is  open  to  him.  And  it  is  that  entire  restraint  upon  the 
\\ill  which,  I  apprehend,  constitutes  the  imprisonment.  In  the  pas- 
sage cited  from  Buller's  Nisi  Prius  it  is  remarked  that  if  the  party 
addressed  by  the  bailiff,  instead  of  complying,  had  run  away,  it 
could  be  no  arrest,  unless  the  bailiff  actually  laid  hold  of  him,  and 
for  obvious  reasons.  Suppose  (and  the  supposition  is  perhaps  ob- 
jectionable, as  only  putting  the  case  before  us  over  again)  any  per- 
son to  erect  an  obstruction  across  a  public  passage  in  a  town,  and 
another,  who  had  a  right  of  passage,  to  be  refused  permission  b> 
the  party  obstructing,  and,  after  some  delay,  to  be  compelled  to  re- 


218  LAW  OF  TORTS. 

turn  and  take  another  and  circuitous  route  to  his  place  of  destina- 
tion. I  do  not  think  that,  during  such  detention,  such  person  was 
under  imprisonment,  or  could  maintain  an  action  for  false  imprison- 
ment, whatever  other  remedy  might  be  open  to  him.  I  am  de- 
sirous only  to  illustrate  my  meaning,  and  explain  the  reason  why 
I  consider  the  imprisonment  in  this  case  not  to  be  complete.  The 
reason,  shortly,  is  that  I  am  aware  of  no  case,  nor  of  any  definition, 
which  warrants  the  supposition  of  a  man  being  imprisoned  during 
the  time  that  an  escape  is  open  to  him,  if  he  chooses  to  avail  him- 
self of  it. 

PATTESON,  J.  I  have  no  doubt  that,  in  general,  if  one  man 
compels  another  to  stay  in  any  given  place  against  his  will,  he  im- 
prisons that  other  just  as  much  as  if  he  locked  him  up  in  a  room ; 
and  I  agree  that  it  is  not  necessary,  in  order  to  constitute  an  im- 
prisonment, that  a  man's  person  should  be  touched.  I  agree,  also, 
that  the  compelling  a  man  to  go  in  a  given  direction  against  his  will 
may  amount  to  imprisonment.  But  I  cannot  bring  my  mind  to  the 
conclusion  that,  if  one  man  merely  obstructs  the  passage  of  another 
in  a  particular  direction,  whether  by  threat  of  personal  violence 
or  otherwise,  leaving  him  at  liberty  to  stay  where  he  is  or  to  go 
in  any  other  direction  if  he  pleases,  he  can  be  said  thereby  to  im- 
prison him.  He  does  him  wrong,  undoubtedly,  if  there  was  a  right 
to  pass  in  that  direction,  and  would  be  liable  to  an  action  on  the 
case  for  obstructing  the  passage,  or  of  assault,  if,  on  the  party 
persisting  in  going  in  that  direction,  he  touched  his  person,  or  so 
threatened  him  as  to  amount  to  an  assault.  But  imprisonment  is, 
as  I  apprehend,  a  total  restraint  of  the  liberty  of  the  person,  for 
however  short  a  time,  and  not  a  partial  obstruction  of  his  will,  what- 
ever inconvenience  it  may  bring  on  him.  The  quality  of  the  act 
cannot,  however,  depend  on  the  right  of  the  opposite  party.  If  it 
be  an  imprisonment  to  prevent  a  man  passing  along  the  public 
highway,  it  must  be  equally  so  to  prevent  him  passing  further  along 
a  field  into  which  he  has  broken  by  a  clear  act  of  trespass. 

A  case  was  said  to  have  been  tried  before  Lord  Chief  Justice 
Tindal,  involving  this  question;  but  it  appears  that  the  plaintiff  in 
that  case  was  compelled  to  stay  and  hear  a  letter  read  to  him  against 
his  will,  which  was  doubtless  a  total  restraint  of  his  liberty  while 
the  letter  was  read.  I  agree  to  the  definition  in  Selwyn's  Nisi  Prius, 
title  "Imprisonment :"  "False  imprisonment  is  a  restraint  on  the 
liberty  of  the  person  without  lawful  cause;  either  by  confinement 
in  prison,  stocks,  house,  etc.,  or  even  by  forcibly  detaining  the 
party  in  the  streets  against  his  will."  He  cites  2.2,  Book  Ass.  fol. 
104,  B,  pi.  85,  per  Thorpe,  C.  J.  The  word  there  used  is  "arrest," 
which  appears  to  me  to  include  a  "detaining,"  as  Mr.  Selwyn  ex- 
presses it,  and  not  to  mean  merely  the  preventing  a  person  from 


FALSE   IMPRISONMENT.  219 

passing.     I  therefore  think  that  the  rule  for  a  new  trial  ought  to  be 
made  absolute. 

DENMAN,  C.  J.  (dissenting).  I  have  not  drawn  up  a  formal 
judgment  in  this  case,  because  I  hoped  to  the  last  that  the  arguments 
which  my  learned  brothers  would  produce  in  support  of  their  opin- 
ion might  alter  mine.  We  have  freely  discussed  the  matter,  both 
orally  and  in  written  communications ;  but,  after  hearing  what  they 
have  advanced,  I  am  compelled  to  say  that  my  first  impression  re- 
mains. If,  as  I  must  believe,  it  is  a  wrong  one,  it  may  be  in  some 
measure  accounted  for  by  the  circumstances  attending  the  case. 
A  company  unlawfully  obstructed  a  public  way  for  their  own  profit, 
extorting  money  from  passengers,  and  hiring  policemen  to  effect 
this  purpose.  The  plaintiff,  wishing  to  exercise  his  right  of  way, 
is  stopped  by  force,  and  ordered  to  move  in  a  direction  which  he 
wished  not  to  take.  He  is  told  at  the  same  time  that  a  force  is  at 
hand  ready  to  compel  his  submission.  That  proceeding  appears  to 
me  equivalent  to  being  pulled  by  the  collar  out  of  one  line  into 
another.  There  is  some  difficulty,  perhaps,  in  defining  "imprison- 
ment" in  the  abstract,  without  reference  to  its  illegality;  nor  is  it 
necessary  for  me  to  do  so,  because  I  consider  these  acts  as  amount- 
ing to  imprisonment.  That  word  I  understand  to  mean  any  re- 
straint of  the  person  by  force.  In  Buller's  Nisi  Prius  (page  22}  it 
is  said:  "Every  restraint  of  a  man's  liberty  under  the  custody  of 
another,  either  in  a  jail,  house,  stocks,  or  in  the  street,  is  in  law  an 
imprisonment;  and  whenever  it  is  done  without  a  proper  authority, 
is  false  imprisonment,  for  which  the  law  gives  an  action;  and  this 
is  commonly  joined  to  assault  and  battery,  for  every  imprisonment 
includes  a  battery,  and  every  battery  an  assault."  It  appears,  there- 
fore, that  the  technical  language  has  received  a  very  large  construc- 
tion, and  that  there  need  not  be  any  touching  of  the  person.  A  lock- 
ing up  would  constitute  an  imprisonment  without  touching.  From 
the  language  of  Thorpe,  C.  J.,  which  Mr.  Selwyn  cites  from  the 
Book  of  Assizes,  (22  Book  Ass.  fol.  104,  B,  pi.  85,)  it  appears  that, 
even  in  very  early  times,  restraint  of  liberty  by  force  was  under- 
stood to  be  the  reasonable  definition  of  imprisonment.  I  had  no 
idea  that  any  person  in  these  times  supposed  any  particular  bound- 
ary to  be  necessary  to  constitute  imprisonment,  or  that  the  restraint 
of  a  man's  person  from  doing  what  he  desires  ceases  to  be  an  im- 
prisonment because  he  may  find  some  means  of  escape.  It  is  said 
that  the  party  here  was  at  liberty  to  go  in  another  direction.  I  am 
not  sure  that  in  fact  he  was,  because  the  same  unlawful  power  which 
prevented  him  from  taking  one  course  might,  in  case  of  acquiescence, 
have  refused  him  any  other.  But  this  liberty  to  do  something  else 
does  not  appear  to  me  to  affect  the  question  of  imprisonment.  As 
long  as  I  am  prevented  from  doing  what  I  have  a  right  to  do,  of 


220  LAW  OP  TORTS. 

what  importance  is  it  that  I  am  permitted  to  do  something  else? 
How  does  the  imposition  of  an  unlawful  condition  show  that  I  am 
not  restrained?  If  I  am  locked  in  a  room,  am  I  not  imprisoned  be- 
cause I  might  effect  my  escape  through  a  window,  or  because  I  might 
find  an  exit  dangerous  or  inconvenient  to  myself,  as  by  wading 
through  water,  or  by  taking  a  route  so  circuitous  that  my  necessary 
affairs  would  suffer  by  delay?  It  appears  to  me  that  this  is  a  total 
deprivation  of  liberty  with  reference  to  the  purpose  for  which  he 
lawfully  wished  to  employ  his  liberty;  and,  being  effected  by  force, 
it  is  not  the  mere  obstruction  of  a  way,  but  a  restraint  of  the  per- 
son. The  case  cited  as  occurring  before  Lord  Chief  Justice  Tindal, 
as  I  understand  it,  is  much  in  point.  He  held  it  an  imprisonment 
where  the  defendant  stopped  the  plaintiff  on  his  road  till  he  had  read 
a  libel  to  him,  yet  he  did  not  prevent  his  escaping  in  another  direc- 
tion. It  is  said  that,  if  any  damage  arises  from  such  obstruction,  a 
special  action  on  the  case  may  be  brought.  Must  I  then  sue  out  a 
new  writ,  stating  that  the  defendant  employed  direct  force  to  prevent 
my  going  where  my  business  called  me,  whereby  I  sustained  loss? 
And,  if  I  do,  is  it  certain  that  I  shall  not  be  told  that  I  have  miscon- 
ceived my  remedy,  for  all  flows  from  the  false  imprisonment,  and 
that  should  have  been  the  subject  of  an  action  of  trespass  and  as- 
sault? For  the  jury  properly  found  that  the  whole  of  the  defend- 
ant's conduct  was  continuous;  it  commenced  in  illegality;  and  the 
plaintiff  did  right  to  resist  it  as  an  outrageous  violation  of  the  liberty 
of  the  subject  from  the  very  first. 
Rule  absolute. 

(See  also  Hildebrand  v.  McCrum,  101  Ind.  61  [locking  a  person  in  a  room] ; 
Marshall  v.  Heller,  55  Wis.  392,  13  N.  W.  236  [detaining  a  person  by  threats]; 
Sorenson  v.  Dundas,  50  Wis.  335,  7  N.  W.  259  [keeping  a  man  in  his  own  house 
by  fear];  McNay  v.  Stratton,  9  111.  App.  215  [frightening  a  man  with  a  revolv- 
er so  that  he  does  not  dare  to  leave  a  certain  place];  Mowry  v.  Chase,  100 
Mass.  79.) 


(9  N.  H.  491.) 
PIKE  v.  HANSON  et  al.  (in  part). 

(Superior  Court  of  Judicature  of  New  Hampshire.    Strafford.    December 

Term,  1838.) 

1.  FALSE  IMPRISONMENT — CONSTRUCTIVE  FORCE  SUFFICIENT. 

Words  alone  are  not  sufficient  to  constitute  an  imprisonment;  there 
must  be  a  touching  of  the  body,  or,  what  is  equivalent,  a  power  of  taking 
immediate  possession  of  the  body,  and  the  party's  submission  thereto. 

2.  SAME. 

Thus  where  a  tax  officer,  being  present  in  the  same  room  with  plaintiff, 
called  upon  her  to  pay  a  tax,  which  she  declined  doing  until  arrested, 
and  be  then  told  her  he  arrested  her,  whereupon  she  yielded  and  paid  the 
tax,  held,  that  this  amounted  to  an  arrest  and  imprisonment,  though  he 


FALSE   IMPRISONMENT.  221 

did  not  lay  his  hand  upon  her,  and,  as  there  was  no  lawful  authority  to 
collect  the  tax,  that  he  was  liable  for  assault  and  false  imprisonment. 

Trespass  for  an  assault  and  false  imprisonment  on  the  ist  day  of 
July,  A.  D.  1837.  The  action  was  commenced  before  a  justice  of 
the  peace.  The  defendants  pleaded  severally  the  general  issue.  It 
appeared  in  evidence  that  the  defendants  were  selectmen  of  the 
town  of  Madbury  for  the  year  1836 ;  that  they  assessed  a  list  of  taxes 
upon  the  inhabitants  of  said  town,  among  whom  was  the  plaintiff, 
and  committed  it  to  Nathan  Brown,  collector  of  said  town,  for  col- 
lection. Brown,  after  having  given  due  notice  to  the  plaintiff,  being 
in  a  room  with  her,  called  upon  her  to  pay  the  tax,  which  she  de- 
clined doing  until  arrested.  He  then  told  her  that  he  arrested  her, 
but  did  not  lay  his  hand  upon  her,  and  thereupon  she  paid  the  tax. 

Upon  this  evidence  the  defendants  objected  that  the  action  could 
not  be  maintained,  because  there  was  no  assault. 

It  did  not  appear  that  the  defendants  had  been  sworn,  as  directed 
by  the  statute  of  January  4,  1833.  A  verdict  was  taken  for  the  plain- 
tiff, subject  to  the  opinion  of  the  court. 

WILCOX,  J.  As  the  appraisement  was  made  in  a  manner  not 
authorized  by  law  [the  assessors  not  having  taken  the  oath  pre- 
scribed by  statute  that  they  will  make  a  just  and  true  appraisement 
of  all  ratable  estate],  all  the  proceedings  of  the  defendants  are  void, 
and  they  are  liable  as  trespassers  for  the  forcible  collection  of  this 
tax. 

But  it  is  contended  that  in  the  present  case  there  has  been  no 
assault  committed  and  no  false  imprisonment.  Bare  words  will  not 
make  an  arrest;  there  must  be  an  actual  touching  of  the  body;  or, 
what  is  tantamount,  a  power  of  taking  immediate  possession  of  the 
body,  and  the  party's  submission  thereto.  Genner  v.  Sparks,  I  Salk. 
79;  2  Esp.  N.  P.  374.  Where  a  bailiff,  having  a  writ  against  a  per- 
son, met  him  on  horseback,  and  said  to  him,  "You  are  my  prisoner," 
upon  which  he  turned  back  and  submitted,  this  was  held  to  be  a 
good  arrest,  though  the  bailiff  never  laid  hand  on  him.  But  if,  on 
the  bailiff's  saying  those  words,  he  had  fled,  it  had  been  no  arrest, 
unless  the  bailiff  had  laid  hold  of  him.  Homer  v.  Battyn,  Buller's 
N.  P.  62.  The  same  doctrine  is  held  in  other  cases.  Russen  v.  Lu- 
cas et  al.,  i  C.  &  P.  153;  Chinn  v.  Morris,  2  C.  &  P.  361;  Pocock 
v.  Moore,  Ryan  &  Moody,  321;  Strout  v.  Gooch,  8  Greenl.  127; 
Bissell  v.  Gold,  I  Wend.  210,  19  Am.  Dec.  480. 

Where,  upon  a  magistrate's  warrant  being  shown  to  the  plain- 
tiff, the  latter  voluntarily  and  without  compulsion  attended  the  con- 
stable who  had  the  warrant,  to  the  magistrate,  it  was  held  there  was 
no  sufficient  imprisonment  to  support  an  action.  Arrowsmith  v. 
Le  Mesurier,  2  N.  R.  211.  But  in  this  case  there  was  no  declaration 


222  LAW  OF  TORTS. 

of  any  arrest,  and  the  warrant  was  in  fact  used  only  as  a  summons. 
And  if  the  decision  cannot  be  sustained  upon  this  distinction,  it  must 
be  regarded  as  of  doubtful  authority. 

Starkie  says  that  in  ordinary  practice  words  are  sufficient  to  con- 
stitute an  imprisonment,  if  they  impose  a  restraint  upon  the  person, 
and  the  plaintiff  is  accordingly  restrained;  for  he  is  not  obliged  to 
incur  the  risk  of  personal  violence  and  insult  by  resisting  until  actual 
violence  be  used.  3  Stark.  Ev.  1448.  This  principle  is  reasonable 
in  itself,  and  is  fully  sustained  by  the  authorities  above  cited.  Nor 
does  it  seem  necessary  that  there  should  be  any  very  formal  declara- 
tion of  an  arrest.  If  the  officer  goes  for  the  purpose  of  executing 
his  warrant;  has  the  party  in  his  presence  and  power;  if  the  party 
so  understands  it,  and  in  consequence  thereof  submits ;  and  the  offi- 
cer, in  execution  of  the  warrant,  takes  the  party  before  a  magistrate, 
or  receives  money  or  property  in  discharge  of  his  person — we  think 
it  is  in  law  an  arrest,  although  he  did  not  touch  any  part  of  the 
body. 

In  the  case  at  bar  it  clearly  appears  that  the  plaintiff  did  not  intend 
to  pay  the  tax,  unless  compelled  by  an  arrest  of  her  person.  The 
collector  was  so  informed.  He  then  proceeded  to  enforce  the  col- 
lection of  the  tax — declared  that  he  arrested  her — and  she,  under 
that  restraint,  paid  the  money.  This  is  a  sufficient  arrest  and  im- 
prisonment to  sustain  the  action,  and  there  must  therefore  be, 

Judgment  on  the  verdict. 

(See,  to  the  same  effect,  Marshall  v.  Heller,  55  Wis.  392,  13  N.  W.  236;  Great- 
house  v.  Summerfield,  25  111.  App.  296;  Comer  v.  Knowles,  17  Kan.  436,  440; 
Oallahan  v.  Searles,  78  Hun,  238,  28  N.  Y.  Supp.  904;  Searls  v.  Viets,  2 
Thomp.  &  C.  224.) 


(90  N.  Y.  77,  43  Am.  Rep.  141.) 

LYNCH  v.  METROPOLITAN  EL.  RY.  CO. 

(Court  of  Appeals  of  New  York.     October  10,  1882.) 

FALSE  IMPRISONMENT— DETENTION  OF  PASSENGER  BY  CARRIER. 

Plaintiff  purchased  a  ticket  for  a  passage  upon  defendant's  railway, 
and  entered  one  of  its  cars,  but,  before  reaching  his  destination,  he  lost 
his  ticket.  On  attempting  to  pass  from  the  station  platform  through  the 
gate  into  the  street,  he  was  prohibited  by  the  gate-keeper,  and  told  that 
he  could  not  pass  until  he  should  produce  a  ticket  or  pay  his  fare.  He 
explained  that  he  had  paid  his  fare  and  lost  his  ticket,  and  insisted  on 
passing  out,  but  was  pushed  back  by  the  gate-keeper;  and,  on  his  further 
Insisting  on  his  right  to  pass,  the  gate-keeper  sent  for  a  police  officer,  and 
ordered  his  arrest,  whereupon  he  was  arrested  by  the  officer.  Held,  that 
the  detention  of  plaintiff  by  the  gate-keeper  for  the  purpose  of  enforcing 
payment  of  fare  was  illegal;  and  that  defendant,  having  instructed  its 
gate-keepers  not  to  let  passengers  pass  out  until  they  should  either  pay 
their  fares  or  show  tickets,  was  liable  to  plaintiff  for  the  false  imprison- 
ment by  the  gate-keeper. 


FALSE   IMPRISONMENT.  223 

Appeal  from  Supreme  Court,  General  Term,  First  Department. 
.  Action  by  Michael  Lynch  against  the  Metropolitan  Elevated  Rail- 
way Company  for  false  imprisonment.  At  the  trial  the  jury  found 
a  verdict  for  plaintiff,  and  judgment  for  plaintiff  was  entered  thereon, 
which  was  affirmed  on  appeal  to  the  general  term.  From  the  judg- 
ment of  the  general  term  defendant  appealed. 

EARL,  J.  In  September,  1878,  the  plaintiff  purchased  a  ticket 
for  a  passage  upon  defendant's  railway  from  its  Forty-Second  Street 
station  to  its  Rector-Street  station,  and  entered  one  of  its  cars.  Be- 
fore reaching  his  destination  he  lost  his  ticket,  and  when  he  attempted 
to  pass  from  the  station  platform  through  the  gate  into  the  street 
he  was  prohibited  by  the  gate-keeper,  and  told  that  he  could  not 
pass  until  he  produced  a  ticket  or  paid  his  fare.  He  explained  that 
he  had  paid  his  fare  and  lost  his  ticket,  and  insisted  upon  passing 
out.  He  was  pushed  back  by  the  gate-keeper,  who  refused  to  let 
him  pass.  He  expostulated,  and  insisted  upon  his  right  to  pass, 
when  the  gate-keeper  sent  for  a  police  officer,  and  ordered  his  ar- 
rest. He  was  arrested,  and  taken  to  a  police  station  by  the  police 
officer,  the  gate-keeper  going  along,  and  making  complaint  against 
him.  He  was  locked  up  in  the  station-house  over  night.  In  the 
morning  the  gate-keeper  appeared  against  him,  and  he  was  examined 
before  a  police  magistrate,  and  discharged.  This  action  was  after- 
wards commenced  to  recover  damages  for  the  false  arrest  and  im- 
prisonment. He  recovered  a  judgment,  which  has,  upon  appeal, 
been  affirmed.  24  Hun,  506. 

We  are  of  opinion  that  the  trial  judge  was  right  in  holding,  as 
matter  of  law,  that  the  plaintiff's  arrest  and  detention  were  illegal. 
The  defendant  had  the  right  to  make  reasonable  rules  and  regula- 
tions for  the  management  of  its  business  and  the  conduct  of  its  pas- 
sengers. It  could  require  every  passenger  before  entering  one  of 
its  cars  to  produce  a  ticket,  and  to  produce  and  deliver  up  the  ticket 
at  the  end  of  his  passage,  or  again  pay  his  fare.  Railroad  Co.  v. 
Page,  22  Barb.  130;  Hibbard  v.  Railroad  Co.,  15  N.  Y.  455;  Vedder 
v.  Fellows,  20  N.  Y.  126;  Townsend  v.  Railroad  Co.,  56  N.  Y.  295, 
15  Am.  Rep.  419.  The  defendant  had  such  a  regulation,  and  no  com- 
plaint can  be  made  of  that.  But  it  had  no  regulation,  and  could 
legally  have  none,  that  a  passenger,  before  leaving  its  cars  or  its 
premises,  should  produce  a  ticket  or  pay  his  fare,  and,  if  he  did  not, 
that  he  should  then  and  there  be  detained  and  imprisoned  until  he 
did  so.  At  most,  the  plaintiff  was  a  debtor  to  the  defendant  for  the 
amount  of  his  fare,  and  that  debt  could  be  enforced  against  him 
by  the  same  remedies  which  any  creditor  has  against  his  debtor. 
If  the  defendant  had  the  right  to  detain  him  to  enforce  payment 
of  the  fare  for  ten  minutes,  it  could  detain  him  for  one  hour,  or  a 
day,  or  a  year,  or  for  any  other  time,  until  compliance  with  its  de-- 


224  LAW  OF  TORTS. 

mands.  That  would  be  arbitrary  imprisonment  by  a  creditor  with- 
out process  or  trial,  to  continue  during  his  will,  until  his  debt  should 
be  paid.  Even  if  a  reasonable  detention  may  be  justified  to  enable 
the  carrier  to  inquire  into  the  circumstances,  it  cannot  be  to  com- 
pel payment  of  fare.  The  detention  here  was  not  to  enable  the  gate- 
keeper to  make  any  inquiry,  but  simply  to  compel  payment.  He 
was  absolutely  informed  that  he  could  not  pass  out  without  producing 
a  ticket  or  paying  his  fare.  This  is  not  like  the  cases  to  which  the 
learned  counsel  for  defendant  has  called  our  attention,  where  rail- 
road conductors  have  been  held  justified  in  ejecting  passengers  from 
cars  for  refusing  to  produce  tickets  or  pay  their  fares.  A  passenger 
has  no  right  to  ride  in  a  car  without  payment  of  his  fare,  and,  if  he 
refuses  to  pay,  the  railroad  company  is  not  bound  to  carry  him,  and 
may,  at  a  proper  place  and  in  a  proper  manner,  remove  him  from  the 
car ;  but  it  could  not  imprison  him  in  a  car  until  he  paid  his  fare,  for 
the  purpose  of  compelling  payment. 

These  views  have  the  sanction  of  very  high  authority.  In  Sun- 
bolf  v.  Alford,  3  Mees.  &  W.  248,  it  was  held  that  an  innkeeper  could 
nqt  detain  the  person  of  his  guest  in  order  to  secure  payment  of 
his  bill.  Lord  Abinger  said:  "If  an  innkeeper  has  a  right  to  detain 
the  person  of  his  guest  for  the  non-payment  of  his  bill,  he  has  a  right 
to  detain  him  until  the  bill  is  paid,  which  may  be  for  life ;  so  that  this 
defense  supposes  that  by  the  common  law  a  man  who  owes  a  small 
debt,  for  which  he  could  not  be  imprisoned  by  legal  process,  may  yet 
be  detained  by  an  innkeeper  for  life.  The  proposition  is  monstrous. 
*  *  *  Where  is  the  law  that  says  a  man  shall  detain  another  for 
his  debt  without  process  of  law?"  In  Chilton  v.  Railway  Co.,  16 
Mees.  &  W.  212,  the  defendant  was  organized  under  an  act  con- 
ferring much  broader  powers  than  are  possessed  by  the  defendant 
in  this  case,  and  yet  it  was  held  that  it  could  not  arrest  a  passenger 
for  refusing  to  pay  a  fare  which  it  was  entitled  to  demand.  In  Standish 
v.  Steam-Ship  Co.,  in  Mass.  512,  15  Am.  Rep.  66,  the  plaintiff  pur- 
chased a  ticket  before  going  upon  the  defendant's  steam-boat  for  a 
passage  from  Fall  River  to  New  York.  The  defendant's  regulation 
was  that  the  passenger  should,  upon  leaving  the  boat  at  the  end  of 
his  passage,  deliver  up  his  ticket  or  pay  his  fare.  When  the  plaintiff 
reached  New  York  he  found  he  had  lost  his  ticket,  and  when  he  at- 
tempted to  leave  the  boat  he  was  prohibited,  and  told  that  he  could 
not  pass  until  he  produced  a  ticket  or  paid  his  fare.  He  was  detained 
two  hours,  and  then,  under  protest,  paid  his  fare,  and  was  permitted 
to  leave  the  boat.  He  sued  the  company  for  false  imprisonment,  and 
recovered  $50.  The  trial  judge  charged  the  jury  that  "the  law  gave 
the  defendant  a  lien  on  the  baggage  of  the  plaintiff,  but  not  on  his 
person ;  that  they  had  no  right  to  detain  him  until  he  did  pay  his  fare 
or  give  up  a  ticket,  or  to  compel  him  to  pay  his  fare  or  give  up  a  ticket, 
but  that,  if  he  knew  that  he  was  to  give  up  his  ticket  before  leaving 


FALSE   IMPRISONMENT.  225 

the  boat,  the  defendant  had  a  right,  if  he  did  not  give  it  up  or  pay  his 
fare,  to  detain  him  for  a  reasonable  time  to  investigate  on  the  spot 
the  circumstances  of  the  case ;  and  if  the  jury  found  that  the  defend- 
ant detained  him  for  the  purpose  of  compelling  him  to  pay  his  fare 
or  to  give  up  his  ticket,  or  detained  him  for  the  purpose  of  investigat- 
ing his  case  an  unreasonable  time,  or  in  an  unreasonable  way,  he  was 
entitled  to  recover."  The  plaintiff  appealed,  alleging  for  error  that 
the  judge  erred  in  charging  the  jury  that  the  defendant  had  a  right 
to  detain  him  a  reasonable  time  to  investigate  the  circumstances  of  the 
case.  No  portion  of  the  charge  was  condemned,  and  the  portion  ex- 
cepted  to  by  the  plaintiff  was  held  to  be  correct. 

'  A  municipal  corporation  authorized  to  make  by-laws  and  pass  ordi- 
nances, and  inflict  penalties  for  their  violation,  cannot  enforce  obedi- 
ence to  them  by  imprisonment,  unless  expressly  authorized  so  to  do 
by  statute.  Potter,  Corp.  §  81 ;  Clark's  Case,  5  Coke,  64.  It  was 
argued  before  us,  on  behalf  of  the  defendant,  that  the  ticket  sold  to 
the  plaintiff  was  the  property  of  the  defendant,  intrusted  to  him  for 
a  special  purpose,  and  that  it  had  the  right  to  prevent  him,  at  the  end 
of  the  journey,  from  carrying  away  this  property.  I  am  not  quite 
ready  to  assent  that  after  the  defendant  sold  the  ticket  to  the  plaintiff 
it  retained  any  right  of  property  therein.  But,  even  if  it  did,  it  did  not 
detain  him  on  that  ground,  and  he  did  not  then  have  the  ticket  in  his 
possession  or  under  his  control,  and  hence  a  detention  to  compel  him 
to  deliver  it  up  could  not,  on  that  ground,  be  justified. 

There  was  no  error  in  the  charge  of  the  judge  in  reference  to  the 
branch  of  the  case  we  have  thus  far  considered.  The  counsel  of  the 
defendant  excepted  to  that  portion  of  the  charge  of  the  judge  where- 
in he  said,  in  substance,  that  the  defendant  had  no  more  right  to  de- 
tain plaintiff  until  he  paid  his  fare  than  a  lawyer  would  have  to  detain 
in  his  office  a  client  who  consulted  him,  and  refused  to  pay  his  fee. 
There  was  no  error  in  this  illustration.  The  detention  in  either  case 
is  unlawful,  and  is  condemned  in  the  law  upon  precisely  the  same  prin- 
ciples. 

There  was  no  error  in  refusing  to  charge  the  request  made  by  de- 
fendant's counsel  that  "the  regulation  of  the  defendant  requiring  pas- 
sengers to  produce  and  surrender  a  ticket  or  pay  the  legal  fare  before 
leaving  the  station  was  a  reasonable  regulation."  It  is  true  that  wheth- 
er a  regulation  is  a  reasonable  one  or  not  is  a  question  of  law  for  the 
court,  but  this  request  reached  too  far.  It  implied  that  the  passenger 
was  to  remain  in  the  station,  and  submit  to  indefinite  detention  there, 
until  he  paid  his  fare,  and  such  a  regulation  would  not  be  reasonable. 

It  now  remains  only  to  be  considered  whether  the  defendant  was 
responsible  for  the  acts  of  the  gate-keeper.  When  the  plaintiff  at- 
tempted to  pass  through  the  gate  the  gate-keeper  told  him  that  in  re- 
sisting and  detaining  him  he  was  simply  doing  his  duty,  and  he  testi- 
fied that  in  all  he  did  he  considered  that  he  was  acting  in  the  line  of 
CHASE  (2o  ED.) — 15 


226  LAW  OF  TORTS. 

his  duty.  The  defendant's  president  testified  that  there  was  a  rigid 
rule  of  the  company  that  passengers  were  required  to  show  at  the 
gate  that  they  had  paid  their  fare  in  order  to  be  able  to  pass  out; 
that  when  they  came  to  the  gate  the  rule  was  that  the  gate-keeper  was 
not  to  let  them  go  out  till  they  either  paid  their  fare  or  showed  a 
ticket;  and  that  the  instructions  to  the  gate-keepers  were  to  collect 
tickets  or  fare.  From  these  facts,  and  all  the  circumstances  of  the  case, 
if  it  is  not  entirely  plain,  the  jury  could  at  least  find  that  the  company 
expected  the  gate-keeper  would  detain  a  passenger  who  could  not  or 
would  not  produce  a  ticket  or  pay  his  fare  at  the  gate,  and  the  gate- 
keeper clearly  understood  that  it  was  his  duty  so  to  do.  In  anything 
that  he  did,  he  did  not  act  for  any  purpose  of  his  own,  but  to  discharge 
what  he  believed  to  be  his  duty  to  his  principal.  It  matters  not  that 
he  exceeded  the  powers  conferred  upon  him  by  his  principal,  and  that 
he  did  an  act  which  the  principal  was  not  authorized  to  do,  so  long 
as  he  acted  in  the  line  of  his  duty,  or,  being  engaged  in  the  service  of 
the  defendant,  attempted  to  perform  a  duty  pertaining,  or  which  he 
believed  to  pertain,  to  that  service.  He  detained  the  plaintiff  at  the 
station,  caused  his  arrest,  went  with  the  police  officer  to  the  police 
station,  there  made  a  complaint,  and  then,  the  next  morning,  appeared 
before  the  police  magistrate,  and  renewed  his  complaint.  These  were 
successive  steps  taken  by  the  gate-keeper  to  enforce  the  payment  of  the 
fare  by  the  plaintiff,  or  to  punish  him  for  refusing  to  pay  it,  and  for  all 
that  he  did  the  defendant  is  responsible.  The  principles  upon  which 
the  liability  of  a  master  rests  in  such  a  case  have  been  so  fully  and 
plainly  laid  down  in  recent  cases  in  this  court  that  a  restatement  of 
them  now  would  serve  no  useful  purposes.  Rounds  v.  Railroad  Co., 
64  N.  Y.  129,  21  Am.  Rep.  597;  Mott  v.  Ice  Co.,  73  N.  Y.  543 ;  De- 
vine  v.  Mills,  90  N.  Y.  637,  mem.  The  judgment  should  be  affirmed, 
with  costs. 

All  concur,  except  FINCH,  J.,  dissenting,  and  RAPALLO,  J.,  not 
voting. 

(Upon  the  question  whether  a  master  is  liable  for  a  wrongful  imprisonment 
by  his  servant,  see  American  Exp.  Co.  v.  Patterson,  73  Ind.  430;  Abrahams 
v.  Deakin  [1891]  1  Q.  B.  516;  Palmeri  v.  Manhattan  R.  Co.,  133  N.  Y.  261,  30 
N.  E.  1001,  16  L.  R.  A.  136,  28  Am.  St.  Rep.  632;  Craven  v.  Bloomingdale,  171 
N.  Y.  439,  64  N.  E.  169;  Krulevitz  v.  Eastern  R.  Co.,  143  Mass.  228,  9  X.  E. 
613;  National  Bank  of  Commerce  v.  Baker,  77  Md.  462,  26  Atl.  867;  Clark  v. 
Starin,  47  Hun,  345.) 


FALSE   IMPRISONMENT.  227 


Arrest  upon  void  process. 

(1)    Liability  of  magistrate. 

(18  Hun,  132.) 
BLODGETT  v.  RACE. 

(Supreme  Court  of  New  York,  General  Term,  Third  Department    May  Term, 

1879.) 

FALSE  IMPRISONMENT — MAGISTBATE — LACK  OF  JURISDICTION. 

A  written  complaint  on  oath  that  certain  goods  were  stolen,  and  that 
the  complainant  "has  probable  cause  to  suspect  and  does  suspect"  that 
a  certain  person  stole  them,  without  any  further  proof,  does  not  give  the 
magistrate  jurisdiction  to  issue  a  warrant  for  the  arrest  of  the  person 
charged.  If  a  warrant  be  issued  and  the  person  accused  be  arrested,  the 
warrant  is  without  lawful  authority,  and  the  magistrate  is  liable  for  false 
imprisonment. 

Appeal  from  an  order  of  the  county  court  of  Greene  county  deny- 
ing a  motion  of  the  plaintiff  for  a  new  trial,  made  upon  a  case  and  ex- 
ceptions. 

On  the  /th  day  of  September,  1874,  Luther  Bailey  presented  his 
written  complaint  on  oath  to  the  defendant,  wherein  he  alleged  that 
certain  goods  of  the  value  of  more  than  $25  were,  on  or  about  the 
1 4th  day  of  April,  1874,  at  the  town  of  Jewett,  Greene  county,  N.  Y., 
stolen  from  Division  No.  209  of  the  Sons  of  Temperance,  "and  that 
the  said  Luther  Bailey  has  probable  cause  to  suspect  and  does  suspect 
that  Frederick  Blodgett,  of  the  town  of  Jewett,  county  of  Greene 
aforesaid,  did  feloniously  steal,  take,  and  carry  away  the  said  goods, 
chattels,  and  property,  in  manner  and  form,  and  at  the  time  and  place, 
aforesaid."  On  the  same  day,  at  the  request  of  said  Bailey,  the  de- 
fendant issued  his  warrant  for  the  arrest  of  said  Blodgett,  the  plaintiff 
herein,  upon  the  charge  so  made  in  the  aforesaid  complaint,  without 
any  further  evidence.  The  defendant  assumed  to  act  in  the  premises  as 
a  justice  of  the  peace.  The  warrant  was  delivered  to  a  constable  on 
the  day  of  its  issue,  who  on  the  same  day  arrested  the  plaintiff  thereon, 
and  brought  him  before  the  defendant. 

This  action  was  subsequently  commenced  to  recover  damages  for 
false  imprisonment.  The  plaintiff  was  nonsuited  on  the  trial. 

BOCKES,  J.  A  complaint  in  writing,  charging  a  criminal  offense, 
although  on  information  and  belief  only  as  to  the  person  suspected  of 
having  committed  it,  is  sufficient  to  authorize  an  investigation  before 
a  magistrate  by  the  examination  of  witnesses.  The  magistrate  on  such 
complaint  may  issue  subpoenas  for  witnesses,  and  has  jurisdiction  of 


228  LAW  OF  TORTS. 

the  subject-matter  of  the  offense  charged  to  have  been  committed,  and 
may  compel  the  attendance  of  witnesses  by  attachment  in  case  of  dis- 
obedience of  the  subpoena.  People  v.  Hicks,  15  Barb.  153.  But  before 
a  warrant  can  lawfully  issue  for  the  arrest  of  the  offender  the  magis- 
trate must  have  some  evidence  of  his  guilt.  Facts  and  circumstances, 
stated  on  information  and  belief  only,  without  giving  any  sufficient 
grounds  on  which  to  base  the  belief,  are  insufficient  to  confer  juris- 
diction as  to  the  person.  The  magistrate  must  have  evidence  of  prob- 
able cause,  both  as  to  the  commission  of  the  offense  and  the  guilt  of 
the  offender,  before  he  can  have  jurisdiction  to  cause  the  arrest.  Com- 
fort v.  Fulton,  39  Barb.  56;  Vredenburgh  v.  Hendricks,  17  Barb.  179; 
Wilson  v.  Robinson,  6  How.  Prac.  no;  Pratt  v.  Bogardus,  49  Barb. 
89;  The  People  v.  Hicks,  15  Barb.  153;  Wells  v.  Sisson,  14  Hun, 
267 ;  Carl  v.  Ayers,  53  N.  Y.  14.  It  is  laid  down  in  Waterman's  Notes 
to  Archbold's  Criminal  Practice  and  Pleadings  (volume  I,  120,  marg. 
p.  31)  that  a  warrant  cannot  be  issued  against  one  if  his  guilt  appears 
only  from  hearsay  and  mere  rumor,  but  that  a  case  of  probable  guilt 
on  the  part  of  the  accused  must  be  made  out.  If  facts  and  circum- 
stances be  stated  sufficient  to  call  for  judicial  determination,  the  mag- 
istrate will  be  protected  in  his  action,  and  this  although  he  might  err 
in  judgment.  In  such  case  he  is  to  be  fully  protected,  and  the  error 
can  only  be  made  available  on  writ  of  error  or  appeal  in  the  action  or 
proceeding  in  which  the  error  occurred.  As  to  the  case  in  hand,  it 
seems  that  the  warrant  was  issued  on  less  proof,  even,  than  informa- 
tion or  belief,  as  regards  the  plaintiff.  It  was  issued  on  an  allega- 
tion only  of  "suspicion  and  belief"  as  to  the  plaintiff's  guilt.  No  fact 
or  circumstance  whatever  was  stated  to  support  the  suspicion,  even 
much  less  to  support  a  conclusion  of  probable  cause  against  him.  The 
warrant  was  without  jurisdiction;  hence  afforded  the  defendant  no 
protection  against  the  charge  of  an  illegal  arrest.  It  is  not  necessary 
here  to  hold  that  the  defendant  had  no  ground  for  committing  the 
plaintiff  after  the  open  public  examination  was  had.  It  is  quite  possi- 
ble, and  I  think  it  must  be  assumed,  that  there  was  sufficient  evidence 
given  before  him  to  uphold  his  conclusion  to  commit.  But  we  do 
not  pass  upon  that  question  here.  The  original  arrest  directed  by  the 
defendant  was  unauthorized,  and  the  nonsuit  herein  was  therefore 
improperly  granted.  This  conclusion  renders  it  unnecessary  to  ex- 
amine other  questions  raised  in  the  case.  Perhaps  it  should  be  further 
remarked  that  the  case  as  presented  on  this  appeal  does  not  appear 
to  be  one  of  serious  enormity.  The  good  faith  of  the  defendant  in 
issuing  the  warrant  is  not  denied.  The  plaintiff  was  in  no  way  se- 
riously oppressed ;  on  the  contrary,  was  allowed  great  liberty  after 
his  arrest,  and  during  the  examination,  and  finally  submitted  to  be 
committed  rather  than  give  bail,  which  it  seems  was  easily  to  be  ob- 
tained. Whether  or  not  the  plaintiff  may  recover  more  than  nominal 


FALSE   IMPRISONMENT.  229 

damages  is  for  a  jury  to  determine.     The  order  appealed  from  de- 
nying a  new  trial  must  be  reversed. 

LEARNED,  P.  J.,  and  BOARDMAN,  J.,  concurred. 
Order  reversed ;  new  trial  granted,  costs  to  abide  event 

(Leading  decisions  in  support  of  this  doctrine  are  Vaughn  v.  Congdon,  56 
Vt.  Ill,  48  Am.  Rep.  758;  Kelly  v.  Bemis,  4  Gray,  83,  64  Am.  Dec.  50  [warrant 
issued  under  unconstitutional  statute];  McKelvey  v.  Marsh,  G3  App.  Div.  396, 
71  N.  Y.  Supp.  541;  Lanpher  v.  Dewell,  56  Iowa,  153,  9  N.  W.  101.  The  ratio 
decidendi  of  Blodgett  v.  Race,  ante,  p.  227,  is  explained  in  Swart  v.  Rickard, 
148  N.  Y.  264,  269,  42  N.  E.  665.) 


(44  N.  J.  Law,  654,  43  Am.  Rep.  412.) 

GROVE  v.  VAN  DUYN  et  al. 
(Court  of  Errors  and  Appeals  of  New  Jersey.    November  Term,  1882.) 

1.  FALSE  IMPRISONMENT— ACT  OF  JUDICIAL  OFFICER— LIABILITY. 

A  judicial  officer  having  general  powers  is  responsible  for  unlawful  im- 
prisonment in  causing  an  arrest  in  a  given  case  belonging  to  a  class  of 
cases  over  which  he  has  cognizance,  unless  the  case  is,  by  complaint  or 
other  proceeding,  put  at  least  colorably  under  his  jurisdiction. 

2.  SAME. 

Under  the  statute  of  New  Jersey  (Revision,  p.  244,  §  99),  making  it  an 
indictable  offense  to  carry  off  any  corn,  a  sworn  complaint  charging  one 
with  entering  certain  lands  and  carrying  off  a  quantity  of  cornstalks 
placed  the  case  colorably  under  the  justice's  jurisdiction,  so  that  be  was 
not  liable  for  issuing  a  warrant  thereon. 

3.  SAME— LIABILITY  OF  PERSON  MAKING  COMPLAINT. 

One  who  merely  made  a  sworn  complaint,  setting  forth  the  facts  truly, 
before  a  justice  of  the  peace  having  general  jurisdiction  in  such  cases, 
was  not  liable  for  unlawful  imprisonment,  even  if  the  acts  of  the  justice, 
in  issuing  a  warrant  thereon  and  causing  the  arrest  of  the  accused,  were 
extrajudicial. 

On  Error  to  the  Middlesex  Circuit. 

Action  by  William  H.  Grove,  Jr.,  against  Cornelius  Van  Duyn  and 
Charles  L.  Stout  for  trespass  for  assault  and  false  imprisonment 
Judgment  of  nonsuit,  and  plaintiff  brings  error. 

On  a  sworn  complaint  of  Cornelius  Van  Duyn  that  William  H. 
Grove  and  others  had  entered  on  the  lands  of  Samuel  Van  Tilburgh, 
and  with  force  and  arms  had  unlawfully  carried  away  a  quantity  of 
cornstalks,  Charles  L,.  Stout,  a  justice  of  the  peace,  issued  a  warrant. 
They  were  arrested,  and,  having  waived  examination,  were  committed 
to  jail.  Having  given  bail  the  next  day,  Grove  brought  this  suit  in 
trespass  for  assault  and  unlawful  imprisonment. 


230  LAW  OF  TORTS. 

BEASLEY,  C.  J.  Most  of  the  general  principles  of  law  pertaining 
to  that  branch  of  this  controversy  which  relates  to  the  alleged  liability 
of  the  defendant  in  this  suit,  who  was  a  justice  of  the  peace,  are  so 
:ompletely  settled  as  not  to  be  open  to  discussion.  The  doctrine  that 
an  action  will  not  lie  against  a  judge  for  a  wrongful  commitment,  or 
for  an  erroneous  judgment,  or  for  any  other  act  made  or  done  by  him 
in  his  judicial  capacity,  is  as  thoroughly  established  as  are  any  other 
>f  the  primary  maxims  of  the  law.  Such  an  exemption  is  absolutely 
essential  to  the  very  existence,  in  any  valuable  form,  of  the  judicial 
office  itself;  for  a  judge  could  not  be  either  respected  or  independent 
if  his  motives  for  his  official  actions  or  his  conclusions,  no  matter 
how  erroneous,  could  be  put  in  question  at  the  instance  of  every  malig- 
nant or  disappointed  suitor.  Hence  we  find  this  judicial  immunity 
has  been  conferred  by  the  laws  of  every  civilized  people.  That  it 
exists  in  this  state  in  its  fullest  extent  has  been  repeatedly  declared 
by  our  own  courts.  Such  was  pronounced  by  the  Supreme  Court  to 
be  the  admitted  principle  in  the  case  of  Little  v.  Moore,  4  N.  J.  Law, 
75,  7  Am.  Dec.  574;  Taylor  v.  Doremus,  16  N.  J.  Law,  473;  Mangold 
v.  Thorpe,  33  N.  J.  Law,  134 ;  and  by  this  court  in  Loftus  v.  Fraz,  43 
N.  J.  Law,  667.  To  this  extent  there  is  no  uncertainty  or  difficulty 
whatever  in  the  subject. 

But  the  embarrassment  arises  where  an  attempt  is  made  to  express 
with  perfect  definiteness  when  it  is  that  acts  done  by  a  judge,  and 
which  purport  to  be  judicial  acts,  are  such  within  the  meaning  of 
the  rule  to  which  reference  has  just  been  made.  It  is  said  everywhere 
in  the  text-books  and  decisions  that  the  officer,  in  order  to  entitle  him- 
self to  claim  the  immunity  that  belongs  to  judicial  conduct,  must  re- 
strict his  action  within  the  bounds  of  his  jurisdiction,  and  jurisdiction 
has  been  defined  to  be  "the  authority  of  the  law  to  act  officially  in  the 
particular  matter  in  hand."  Cooley  on  Torts,  417.  But  these  maxims, 
although  true  in  a  general  way,  are  not  sufficiently  broad  to  embrace 
the  principle  of  immunity  that  appertains  to  a  court  or  judge  exer- 
cising a  general  authority.  Their  defect  is  that  they  leave  out  of  the 
account  all  those  cases  in  which  the  officer  in  the  discharge  of  his  pub- 
lic duty  is  bound  to  decide  whether  or  not  a  particular  case,  under  the 
circumstances  as  presented  to  him,  is  within  his  jurisdiction,  and  he 
falls  into  error  in  arriving  at  his  conclusion.  In  such  instance,  the 
judge,  in  point  of  fact  and  law,  has  no  jurisdiction,  according  to  the 
definition  just  given,  over  "the  particular  matter  in  hand,"  and  yet, 
in  my  opinion,  very  plainly  he  is  not  responsible  for  the  results  that 
wait  upon  his  mistake.  And  it  is  upon  this  precise  point  that  we  find 
confusion  in  the  decisions.  There  are  certainly  cases  which  hold  that 
if  a  magistrate  in  the  regular  discharge  of  his  functions  causes  an  ar- 
rest to  be  made  under  his  warrant  on  a  complaint  which  does  not  con- 
tain the  charge  of  a  crime  cognizable  by  him  he  is  answerable  in  an  ac- 
tion for  the  injury  that  has  ensued.  But  I  think  these  cases  are  de- 


FALSE   IMPRISONMENT.  231 

flections  from  the  correct  rule;  they  make  no  allowance  for  matters 
of  doubt  and  difficulty.  If  the  facts  presented  for  the  decision  of  the 
justice  are  of  uncertain  signification  with  respect  to  their  legal  effect, 
and  he  decides  one  way,  and  exercises  a  cognizance  over  the  case ; 
if  the  superior  court  in  which  the  question  arises  in  a  suit  against  the 
justice  differs  with  him  on  this  close  legal  question — is  he  open,  by  rea- 
son of  his  error,  to  an  attack  by  action?  If  the  officer's  exemption 
from  liability  is  to  depend  on  the  question  whether  he  had  jurisdiction 
over  the  particular  case,  it  is  clear  that  such  officer  is  often  liable 
under  such  conditions,  because  the  higher  court,  in  deciding  a  doubtful 
point  of  law,  may  have  declared  that  some  element  was  wanting  in  the 
complaint  which  was  essential  to  bring  this  case  within  the  judicial 
competency  of  the  magistrate.  But  there  are  many  decisions  which 
perhaps,  without  defining  any  very  clear  rule  on  the  subject,  have  main- 
tained that  the  judicial  officer  was  not  liable  under  such  conditions. 
The  very  copious  brief  of  the  counsel  of  the  defendants  abounds  in 
such  illustrations.  As  an  example,  we  may  refer  to  the  old  case  of 
Gwinne  v.  Poole,  2  Lutw.  387,  in  which  it  was  held  that  the  justice 
was  justified  because  he  had  reason  to  believe  that  he  had  jurisdiction, 
although  there  was  an  arrest  in  an  action  which  arose  out  of  the  jus- 
tice's jurisdiction.  This  case  has  been  since  approved  in  Kemp  v. 
Neville,  10  C.  B.  (N.  S.)  550,  Here,  if  the  test  of  official  liability  had 
been  the  mere  fact  of  the  right  to  take  cognizance  over  the  particular 
matter  in  hand,  considered  in  the  light  of  strict  legal  rules,  this  de- 
cision would  have  been  the  opposite  of  what  it  is.  In  the  same  way 
the  subject  is  elucidated  in  Brittain  v.  Kinnard,  I  B.  &  B.  432,  the 
facts  being  a  conviction  by  a  justice  of  a  person  of  having  gunpowder 
in  a  certain  boat,  a  special  act  authorizing  the  detention  of  any  sus- 
pected boat;  and  when  the  magistrate  was  sued  in  trespass  for  an 
illegal  conviction  it  was  declared  that  the  plaintiff,  in  order  to  show 
the  defendants'  want  of  cognizance  over  the  proceedings  leading  to 
the  conviction,  could  not  give  evidence  that  the  craft  in  question  was 
a  vessel,  and  not  a  boat,  because  the  justice  had  judicially  determined 
that  point.  And  in  this  case  likewise  the  test  of  jurisdiction  in  the 
magistrate,  in  point  of  fact  and  of  law,  was  rejected ;  an  inquiry  into 
the  authority  by  force  of  which  the  proceedings  had  been  taken  being 
disallowed  for  the  reason  that  such  question  had  been  passed  upon  by 
the  magistrate  himself,  the  point  being  before  him  for  adjudication. 
The  same  doctrine  was  promulged  in  explicit  and  forcible  terms  by  Mr. 
Justice  Field,  delivering  the  opinion  of  the  Supreme  Court  of  the 
United  States,  in  the  case  of  Bradley  v.  Fisher,  13  Wall.  335,  20  L,. 
Ed.  646,  this  being  his  language:  "If  a  judge  of  a  criminal  court, 
invested  with  general  criminal  jurisdiction  over  offenses  committed 
within  a  certain  district,  should  hold  a  particular  act  to  be  a  public 
offense  which  it  is  not,  and  proceed  to  the  arrest  and  trial  of  a  party 
charged  with  such  act,  *  *  *  no  personal  liability  to  civil  action 


232  LAW   OF  TORTS. 

for  such  acts  would  attach  to  the  judge,  although  those  acts  would  be 
in  excess  of  his  jurisdiction,  or  of  the  jurisdiction  of  the  court  held 
by  him,  for  these  are  particulars  for  his  judicial  consideration,  when- 
ever this  general  jurisdiction  over  the  subject  matter  is  invoked." 

These  decisions,  in  my  estimation,  stand  upon  a  proper  footing,  and 
many  others  of  the  same  kind  might  be  referred  to;  but  such  course 
is  not  called  for,  as  it  must  be  admitted  that  there  is  much  contrariety 
of  results  in  this  field,  and  the  references  above  given  are  amply  suffi- 
cient as  illustrations  for  my  present  purposes.  The  assertion,  I  think, 
may  be  safely  made  that  the  great  weight  of  judicial  opinion  is  in  op- 
position to  the  theory  that  if  a  judge,  as  a  matter  of  law  and  fact,  has 
not  jurisdiction  over  the  particular  case,  that  thereby,  in  all  cases,  he 
incurs  the  liability  to  be  sued  by  any  one  injuriously  affected  by  his 
assumption  of  cognizance  over  it.  The  doctrine  that  an  officer  having 
general  powers  of  judicature  must,  at  his  peril,  pass  upon  the  ques- 
tion, which  is  often  one  difficult  of  solution,  whether  the  facts  before 
him  place  the  given  case  under  his  cognizance,  is  as  unreasonable  as 
it  is  impolitic.  Such  a  regulation  would  be  applicable  alike  to  all 
courts  and  to  all  judicial  officers  acting  under  a  general  authority, 
and  it  would  thus  involve  in  its  liabilities  all  tribunals  except  those  of 
last  resort.  It  would  also  subject  to  suit  persons  participating  in  the 
execution  of  orders  and  judgments  rendered  in  the  absence  of  a  real 
ground  of  jurisdiction.  By  force  of  such  a  rule,  if  the  Supreme 
Court  of  this  state,  upon  a  writ  being  served  in  a  certain  manner, 
should  declare  that  it  acquired  jurisdiction  over  the  defendant,  and 
judgment  should  be  entered  by  default  against  him,  and  if,  upon  error 
brought,  this  court  should  reverse  such  judgment  on  the  ground  that 
the  service  of  the  writ  in  question  did  not  give  the  inferior  court  juris- 
diction in  the  case,  no  reason  can  be  assigned  why  the  justices  of  the 
Supreme  Court  should  not  be  liable  to  suit  for  any  injurious  conse- 
quence to  the  defendant  proceeding  from  their  judgment.  As  I  have 
said,  in  my  judgment  the  jurisdictional  test  of  the  measure  of  judicial 
responsibility  must  be  rejected. 

Nevertheless,  it  must  be  conceded  that  it  is  also  plain  that  in  many 
cases  a  transgression  of  the  boundaries  of  his  jurisdiction  by  a  judge 
will  impose  upon  him  a  liability  to  an  action  in  favor  of  the  person  who 
has  been  injured  by  such  excess.  If  a  magistrate  should,  of  his  own 
motion,  without  oath  or  complaint  being  made  to  him,  on  mere  hear- 
say, issue  a  warrant  and  cause  an  arrest  for  an  alleged  larceny,  it  can- 
not be  doubted  that  the  person  so  illegally  imprisoned  could  seek  re- 
dress by  a  suit  against  such  officer.  It  would  be  no  legal  answer  for 
the  magistrate  to  assert  that  he  had  a  general  cognizance  over  crim- 
inal offenses,  for  the  conclusive  reply  would  be  that  this  particular 
case  was  not,  by  any  form  of  proceeding,  put  under  his  authority. 

From  these  legal  conditions  of  the  subject  my  inference  is  that  the 


FALSE   IMPRISONMENT.  233 

true  general  rule  with  respect  to  the  actionable  responsibility  of  a  judi- 
cial officer  having  the  right  to  exercise  general  powers  is  that  he  is 
so  responsible  in  any  given  case  belonging  to  a  class  over  which  he  has 
cognizance,  unless  such  case  is,  by  complaint  or  other  proceeding,  put 
at  least  colorably  under  his  jurisdiction.  Where  the  judge  is  called 
upon  by  the  facts  before  him  to  decide  whether  his  authority  extends 
over  the  matter,  such  an  act  is  a  judicial  act,  and  such  officer  is  not 
liable  in  a  suit  to  the  person  affected  by  his  decision,  whether  such 
decision  be  right  or  wrong.  But  when  no  facts  are  present,  or  only 
such  facts  as  have  neither  legal  value  nor  color  of  legal  value  in  the 
affair,  then,  in  that  event,  for  the  magistrate  to  take  jurisdiction  is 
not  in  any  manner  the  performance  of  a  judicial  act,  but  simply  the 
commission  of  an  unofficial  wrong.  This  criterion  seems  a  reason- 
able one.  It  protects  a  judge  against  the  consequences  of  every  error 
of  judgment,  but  it  leaves  him  answerable  for  the  commission  of  wrong 
that  is  practically  willful.  Such  protection  is  necessary  to  the  inde- 
pendence and  usefulness  of  the  judicial  officer,  and  such  responsibility 
is  important  to  guard  the  citizen  against  official  oppression. 

The  application  of  the  above-stated  rule  to  this  case  must,  obviously, 
result  in  a  judgment  affirming  the  decision  of  the  circuit  judge.  There 
was  a  complaint,  under  oath,  before  this  justice,  presenting  for  his  con- 
sideration a  set  of  facts  to  which  it  became  his  duty  to  apply  the  law. 
The  essential  things  there  stated  were  that  the  plaintiff,  in  combina- 
tion with  two  other  persons,  "with  force  and  arms,"  entered  upon 
certain  lands,  and  "with  force  and  arms  did  unlawfully  carry  away 
about  four  hundred  bundles  of  cornstalks,  of  the  value,"  etc.,  and 
were  engaged  in  carrying  other  cornstalks  from  said  lands.  By  a  stat- 
ute of  this  state  (Revision,  p.  244,  §  99)  it  is  declared  to  be  an  indictable 
offense  "if  any  person  shall  willfully,  unlawfully,  and  maliciously" 
set  fire  to  or  burn,  carry  off,  or  destroy  any  barrack,  cock,  crib,  rick,  or 
stack  of  hay,  corn,  wheat,  rye,  barley,  oats,  or  grain  of  any  kind,  or 
any  trees,  herbage,  growing  grass,  hay,  or  other  vegetables,  etc.  Now, 
although  the  misconduct  described  in  the  complaint  is  not  the  mis-, 
conduct  described  in  this  act,  nevertheless  the  question  of  their  identity 
was  colorably  before  the  magistrate,  and  it  was  his  duty  to  decide  it; 
and,  under  the  rule  above  formulated,  he  is  not  answerable  to  the 
person  injured  for  his  erroneous  application  of  the  law  to  the  case 
that  was  before  him. 

As  to  the  other  defendant,  all  he  did  was  to  make  his  complaint  on 
oath  before  the  justice,  setting  forth  the  facts  truly,  and  for  such  an 
act  he  could  not  be  held  liable  for  the  judicial  action  which  ensued, 
even  if  such  action  had  been  extra  judicial.  But  as  the  case  was,  as 
we  have  seen,  brought  within  the  jurisdiction  of  the  judicial  officer, 
neither  this  defendant  nor  any  other  person  could  be  treated  as  a  tres- 
passer for  his  co-operation  in  procuring  a  decision  and  commitment 


234  LAW  OF  TORTS. 

which  were  valid  in  law  until  they  had  been  set  aside  by  a  superior 
tribunal. 

Let  the  judgment  be  affirmed. 

All  concur. 

(This  doctrine  is  sustained  by  the  following  leading  cases:  Booth  v.  Kurrus, 
55  N.  J.  Law,  370,  26  Atl.  1013;  Harrison  v.  Clark,  4  Hun,  685;  Bocock  v. 
Cochran,  32  Hun,  521;  Austin  v.  Vrooman,  128  N.  Y.  229,  28  N.  E.  477,  14 
L.  R.  A.  138;  Doty  T.  Kurd,  124  Mich.  671,  83  N.  W.  632;  Murphy  v.  Walters, 
34  Mich.  180.) 


(2)    Liability  of  complainant  or  party  suing  out  process. 

(7  Gray,  53,  66  Am.  Dec.  457.) 

BARKER  v.  STETSON  et  al. 

(Supreme  Judicial  Court  of  Massachusetts.    Middlesex.    October  Term,  1856.) 

TRESPASS — LIABILITY  OF  COMPLAINANT  FOB  ACTS  OF  OFFICER   TJNDEB  VOID 
PROCESS. 

Making  a  complaint  to  a  magistrate  does  not  render  the  complainant 
liable  in  trespass  for  acts  done  under  a  warrant  issued  thereon  by  the 
magistrate,  even  if  the  magistrate  has  no  jurisdiction  to  issue  such 
process  in  the  given  case.  Thus  where  the  process  was  issued  under  an 
unconstitutional  statute,  and  was  therefore  void,  the  complainant  was 
held  not  liable. 

Action  of  tort  for  entering  the  plaintiff's  shop,  and  taking  and  carry- 
ing away  therefrom  two  casks  of  intoxicating  liquors.  The  answer 
denied  the  entry  and  the  taking. 

At  the  trial  in  the  court  of  common  pleas,  before  Sanger,  J.,  the 
plaintiff  introduced  evidence  that  the  defendants  signed  and  made  oath 
to  a  complaint  to  a  justice  of  the  peace,  under  St.  1852,  c.  322,  §  14, 
praying  him  to  issue  his  warrant  for  the  seizure  of  the  plaintiff's 
liquors,  and  a  warrant  was  issued  thereon  by  said  justice,  and  served 
by  a  deputy  sheriff  by  entering  the  shop  and  seizing  the  liquors. 

The  defendants  contended,  and  the  court  ruled,  that  upon  this  evi- 
dence the  plaintiff  could  not  maintain  his  action.  The  plaintiff  be- 
came nonsuit,  and  alleged  exceptions  to  the  ruling. 

METCAL/F,  J.  The  defendants  made  a  complaint  to  a  magistrate, 
under  St.  1852,  c.  322,  §  14,  and  therein  prayed  him  to  issue  process 
for  the  seizure  of  the  plaintiff's  liquors;  and  they  did  nothing  more. 
The  magistrate  issued  the  process,  and  an  officer  served  it  according 
to  its  precept.  The  section  of  the  statute  under  which  this  process 
was  issued  being  unconstitutional,  the  magistrate  had  no  jurisdiction, 
the  process  was  void,  and  the  service  of  it  was  a  trespass  upon  the 
plaintiff,  for  which  the  magistrate  and  the  officer  are  answerable. 
Fisher  v.  McGirr,  I  Gray,  I,  61  Am.  Dec.  381 ;  Kelly  v.  Bemis,  4  Gray, 


FALSE   IMPRISONMENT.  235 

83,  64  Am.  Dec.  50.  Are  the  defendants  also  answerable  in  the  form 
of  action  which  ihe  plaintiff  has  adopted?  It  is  quite  clear  that  they 
are  not.  The  authorities  are  conclusive  that  when  a  person  does  no 
more  than  to  prefer  a  complaint  to  a  magistrate,  he  is  not  liable  in 
trespass  for  the  acts  done  under  the  warrant  which  the  magistrate 
thereupon  issues,  even  though  the  magistrate  has  no  jurisdiction.  If 
the  complaint  is  malicious  and  without  probable  cause,  the  complainant 
may  be  answerable  in  another  form  of  action.  Brown  v.  Chapman,  6 
C.  B.  365 ;  Carratt  v.  Morley,  I  Gale  &  Dav.  275,  and  I  Ad.  &  El.  N. 
S.  18 ;  Cooper  v.  Harding,  7  Ad.  &  El.  N.  S.  928 ;  West  v.  Smallwood, 
3  M.  &  W.  418,  and  Horn  &  Hurlst.  117;  Barber  v.  Rollinson,  I  Cr. 
&  M.  330,  and  3  Tyrwh.  266.  See,  also,  a  recognition  of  this  doctrine 
by  Lord  Campbell  in  Chivers  v.  Savage,  5  El.  &  Bl.  701. 
Exceptions  overruled. 

(This  is  not  a  case  of  false  imprisonment,  but  the  principle  is  the  same  in 
such  a  case  also.  All  the  cases  cited  in  the  decision,  except  the  first,  were 
cases  of  false  imprisonment.  See  also  Gifford  v.  Wiggins,  50  Minn.  401,  52 
N.  W.  904,  18  L.  R.  A.  356;  Whaley  v.  Lawton,  62  S.  C.  91,  40  S.  E.  128,  56 
L.  R.  A.  649;  Tillman  v.  Beard,  121  Mich.  475,  80  N.  W.  248,  46  L.  R.  A.  215; 
Dusy  v.  Helm,  59  Cal.  188;  Teal  v.  Fissel  [C.  C.]  28  Fed.  351.) 


(7  Gray,  55,  66  Am.  Dec.  459.) 

EMERY  v.   HAPGOOD. 
(Supreme  Judicial  Court  of  Massachusetts.     Middlesex.     October  Term,  1856.) 

FALSE    IMPRISONMENT— WANT    OF   JURISDICTION — VOID    WARRANT — LIABILITY 
OF  PARTY  INSTIGATING  ARREST. 

A  complainant  who  obtains  a  warrant  from  a  magistrate  who  has  no 
Jurisdiction  of  the  cause,  and  instigates  and  induces  an  officer  to  arrest 
the  defendant  thereon,  is  liable  in  damages  for  false  imprisonment  to  the 
party  arrested,  without  regard  to  the  fact  whether  the  warrant  is  valid 
on  its  face  or  not  Since  the  warrant  is  in  reality  void,  and  the  com- 
plainant is  under  no  duty  to  cause  it  to  be  executed,  he  is  not  entitled 
to  the  exemption  of  an  officer,  who  is  protected  if  a  warrant  be  valid  on 
its  face  and  be  issued  by  a  court  or  magistrate  apparently  having  juris- 
diction of  the  case  or  subject-matter. 

In  action  of  tort  for  assault  and  false  imprisonment  defendant  com- 
plained of  plaintiff  before  a  justice  of  the  peace  for  the  alleged  viola- 
tion of  the  liquor  law,  on  which  plaintiff  was  adjudged  guilty.  On 
the  hearing  of  said  complaint  the  justice  directed  the  commitment 
of  plaintiff  to  jail  for  contempt.  The  justice  had  no  jurisdiction, 
either  of  the  original  complaint  or  to  enter  the  order  of  commitment  for 
contempt.  The  warrant  of  commitment  for  contempt  was  served 
on  plaintiff  at  the  instigation  and  through  the  inducement  of  defend- 
ant. Judgment  on  verdict  for  plaintiff. 


236  LAW  OF  TORTS. 

BIGELOW,  J.  The  want  of  jurisdiction  in  the  magistrate  to  try 
and  determine  the  complaint  originally  made  by  the  defendant  against 
the  plaintiff,  and  the  invalidity  of  the  commitment  of  the  plaintiff  for 
contempt,  are  fully  settled  in  Piper  v.  Pearson,  2,  Gray,  120,  61  Am. 
Dec.  438.  In  that  case  the  proceedings  before  the  magistrate  were 
similar  to  those  in  the  case  at  bar. 

The  only  question  therefore  arising  in  this  case  is  whether,  upon 
the  facts  proved,  the  defendant  is  liable  as  a  trespasser.  In  deciding 
this  question  it  is  unnecessary  to  determine  upon  the  regularity  of  the 
form  of  the  warrant  of  commitment.  This  is  not  an  action  against 
an  officer  for  serving  the  warrant,  or  against  a  person  acting  by  or  un- 
der his  authority  or  sanction.  If  it  were,  it  would  be  essential  to  con- 
sider whether  the  warrant  was  bad  on  its  face,  and  disclosed  the  want 
of  jurisdiction  in  the  magistrate  who  issued  it.  For  reasons  founded 
on  public  policy,  and  in  order  to  secure  a  prompt  and  effective  service 
of  legal  process,  the  law  protects  its  officers,  and  those  acting  under 
them,  in  the  performance  of  their  duties,  if  there  is  no  defect  or  want 
of  jurisdiction  apparent  on  the  face  of  the  writ  or  warrant  under  which 
they  act.  The  officer  is  not  bound  to  look  beyond  his  warrant.  He  is 
not  to  exercise  his  judgment  touching  the  validity  of  the  process  in 
point  of  law ;  but  if  it  is  in  due  form,  and  is  issued  by  a  court  or  magis- 
trate apparently  having  jurisdiction  of  the  case  or  subject-matter,  he 
is  to  obey  its  command.  In  such  case  he  may  justify  under  it,  al- 
though in  fact  it  may  have  been  issued  without  authority,  and  therefore 
be  wholly  void. 

But  such  is  not  the  rule  applicable  to  strangers  or  third  persons,  who 
are  not  required,  in  the  exercise  of  a  public  duty,  to  assume  the  responsi- 
bility of  executing  legal  process.  If  they  interfere  of  their  own  mo- 
tion, without  authority  or  command  from  the  officers  of  the  law,  to 
cause  a  writ  or  warrant  to  be  enforced,  they  act  at  their  peril ;  and  if 
the  process,  though  regular  on  its  face  and  apparently  good,  was  un- 
authorized, or  was  issued  by  a  tribunal  having  no  jurisdiction,  or  act- 
ing beyond  the  scope  of  its  power,  they  are  liable  for  the  consequences 
arising  from  the  enforcement  of  unlawful  process.  It  is  upon  this 
ground  that  a  party  is  held  responsible  at  whose  suit  execution  is  made 
when  the  officer  serving  it  incurs  no  liability.  The  rule  is  that  if  a 
stranger  voluntarily  takes  upon  himself  to  direct  or  aid  in  the  service 
of  a  bad  warrant,  or  interposes  and  sets  the  officer  to  do  execution,  he 
must  take  care  to  find  a  record  that  will  support  the  process,  or  he  can- 
not set  up  and  maintain  a  justification.  Barker  v.  Braham,  3  Wils.  376; 
Parsons  v.  Loyd,  3  Wils.  341 ;  Bryant  v.  Glutton,  I  M.  &  W.  408 ; 
West  v.  Sraallwood,  3  M.  &  W.  418;  Codrington  v.  Lloyd,  8  Ad.  & 
El.  449;  Carratt  v.  Morley,  i  Ad.  &  El.  N.  S.  18;  Green  v.  Elgie, 
5  Ad.  &E1.  N.  S.  114. 

In  the  present  case  the  defendant  was  a  volunteer  in  urging  the  officer 
to  serve  a  void  warrant  upon  the  plaintiff ;  and,  under  the  instructions 


FALSE   IMPRISONMENT.  237 

given  to  the  jury,  it  is  found  by  their  verdict  that  the  plaintiff  would 
not  have  been  committed  to  jail  but  for  his  interference  and  instiga- 
tion. He  was,  in  a  legal  sense,  a  stranger  to  the  warrant.  It  was  not 
his  duty  or  within  his  province  to  cause  it  to  be  enforced.  After  hav- 
ing made  and  signed  the  original  complaint,  and  testified  in  its  sup- 
port before  the  magistrate,  his  duty  and  responsibility  were  at  an  end. 
Barker  v.  Stetson,  ante,  234.  He  cannot,  therefore,  shelter  himself 
under  the  authority  of  the  officer,  and  claim  immunity  on  the  ground 
that  the  warrant  was  regular,  and  disclosed  no  want  of  jurisdiction  in 
the  magistrate.  But  it  being  apparent  by  the  record  that  the  warrant 
was  illegally  issued  and  void,  the  defendant  is  responsible  for  the 
trespass  which  he  caused  to  be  committed  upon  the  plaintiff. 
Judgment  on  the  verdict. 

(Other  important  cases  sustaining  this  doctrine  are  Hewitt  v.  Newburger, 
141  N.  Y.  538,  36  N.  E.  593;  Loomis  v.  Render,  41  Hun,  268;  Gelzenleuchter 
v.  Niemeyer,  64  Wis.  316,  25  N.  W.  442,  54  Am.  Rep.  616;  Frazier  v.  Turner, 
76  Wis.  562,  45  N.  W.  411.  But  one  who  has  procured  the  imprisonment  of 
another  on  a  lawful  warrant  is  not  liable  to  an  action  for  false  imprisonment, 
though  he  obtained  the  warrant  by  misrepresentations  [Coupal  v.  Ward,  106 
Mass.  289 ;  Langford  v.  Boston  &  A.  R.  Co.,  144  Mass.  431,  11  N.  E.  697] ;  or 
though  his  object  was  to  enforce  payment  of  a  debt  [Mullen  v.  Brown,  138 
Mass.  114].  If  the  proceeding  was  malicious  and  without  probable  cause,  the 
remedy  would  be  an  action  for  malicious  prosecution.) 


(94  N.  Y.  268,  46  Am.  Rep.  141.) 

GUILLEAUME  v.  ROWE  et  al. 

(Court  of  Appeals  of  New  York.    December  14,  1883.) 

L  VOID  EXECUTION — ISSUANCE  BY  ATTORNEY — LIABILITY  OF  JUDGMENT  CBED- 
ITOB. 

Where  the  attorney  whom  creditors  had  employed  to  bring  an  action 
issued,  upon  the  judgment  recovered  by  them,  a  void  execution  against 
the  person  of  the  judgment  debtor,  and  the  debtor  was  arrested  thereon, 
held,  that  the  judgment  creditors  were  liable  for  the  attorney's  act,  being 
within  the  scope  of  his  implied  authority,  and  were  therefore  responsible 
for  the  wrongful  imprisonment  of  the  debtor. 

2.  FALSE  IMPRISONMENT— RELEASE— VALIDITY. 

Where  a  judgment  debtor,  imprisoned  under  a  void  execution,  was  told 
that  unless  he  signed  a  release  of  his  right  of  action  for  the  false  impris- 
onment he  would  stay  in  jail  a  long  time,  the  release  then  signed  by  him 
was  void  for  duress. 

Action  by  Charles  S.  Guilleaume  against  Edward  Rowe  and  others 
for  false  imprisonment.  From  a  judgment  of  the  superior  court  of 
the  city  of  New  York  (48  N.  Y.  Super.  Ct.  169)  reversing  a  judgment 
in  favor  of  defendants,  they  appeal.  Affirmed. 


238  LAW  OF  TORTS. 

The  defendants  employed  an  attorney  to  sue  plaintiff,  and  obtained 
a  judgment.  An  execution  against  property  was  returned  unsatisfied, 
and  the  attorney  then  issued  an  execution  against  the  person,  and  plain- 
tiff was  arrested  on  the  2d  of  February  and  lodged  in  jail.  Afterward 
the  defendants,  in  their  own  person,  under  date  of  February  24th,  no- 
tified the  sheriff  that  they  "countermanded"  that  execution ;  and  there- 
upon he  informed  the  prisoner  that  he  had  an  order  to  discharge  him, 
if  he  would  sign  a  stipulation  not  to  sue  the  execution  creditors  or  their 
attorney  for  damages  on  account  of  the  arrest,  and  upon  his  refusing 
to  do  so  assured  him  that  if  he  "did  not  sign  it  he  would  have  to  stay  in 
jail  a  long  time."  The  prisoner  signed  the  stipulation  and  was  dis- 
charged. He  then  brought  this  action.  Upon  the  trial  it  was  con- 
ceded that  the  last  execution  was  not  authorized  by  the  judgment,  and 
was  void. 

DANFORTH,  J.  Upon  this  appeal  the  defendants  must  be  held 
to  the  point  on  which  they  succeeded  at  the  trial  term.  They  then 
conceded  that  the  arrest  of  the  plaintiff  was  by  virtue  of  an  execution 
for  which  there  was  no  authority  in  law,  but  had,  him  turned  out  of 
court  on  the  sole  ground  that  there  was  no  evidence  showing  that  either 
of  the  defendants  authorized  the  issuing  of  the  execution  or  his  arrest. 
The  General  Term  were  of  opinion  that  a  case  was  made  out  by  the 
plaintiff,  and  we  agree  with  that  court.  A  party  is  bound  by  the  acts 
of  his  attorney,  although  he  does  not  give  immediate  direction  as  to 
the  proceedings  in  an  action,  or  is  not  with  him  at  its  successive  stages. 
If  he  sets  the  attorney  in  motion  he  becomes  liable  as  the  cause  pro- 
gresses, and  if  the  result  is  in  his  favor  is  responsible  for  the  methods 
resorted  to  for  the  enforcement  of  the  judgment.  This  is  well  settled. 
Barker  v.  Braham,  3  Wils.  368 ;  Poucher  v.  Blanchard,  86  N.  Y.  256. 
Here  the  retainer  of  the  attorney  was  by  these  defendants,  the  issuing 
of  the  execution  was  within  the  scope  of  his  implied  authority,  and  the 
arrest  of  the  judgment  debtor  was  for  the  purpose  of  compelling  pay- 
ment. This  was  enough  to  make  them  liable.  There  was,  however, 
evidence  tending  to  show  actual  knowledge  on  the  part  of  the  defend- 
ants, and  at  any  rate  acquiescence  by  them  in  the  course  adopted  by  their 
attorney.  The  court  erred  in  taking  the  question  from  the  jury  and 
in  dismissing  the  case  as  one  where  no  cause  of  action  was  made  out. 

The  learned  counsel  for  the  appellants  now  argues  that  by  the  stipula- 
tion the  plaintiff  released  his  right  of  action.  But  this  proposition  was 
decided  against  the  defendant  by  the  trial  judge  as  well  as  the  Gen- 
eral Term.  It  has  no  merit.  The  instrument  on  which  he  relies  was 
executed  by  the  plaintiff  without  consideration  and  while  enduring  an 
imprisonment,  which  was  illegal.  It  was  therefore  void  for  duress 
(Foshay  v.  Ferguson,  5  Hill,  154;  Evans  v.  Begleys,  2  Wend.  243),  and 
the  defendants  could  acquire  no  right  under  it. 


FALSE   IMPRISONMENT.  239 

The  General  Term  properly  reversed  the  judgment  and  directed  a 
new  trial.  Its  order  should  be  affirmed,  and,  by  reason  of  the  defend- 
ant's stipulation,  the  plaintiff  have  judgment  absolute.  All  concur. 

Order  affirmed,  and  judgment  accordingly. 

(To  the  same  effect  are  Brooks  v.  Hodgkinson,  4  H.  &  N.  712;  Sleight  v. 
Leavenworth,  5  Duer,  122;  cf.  Foster  v.  Wiley,  27  Mich.  244,  15  Am.  Rep.  185.) 


(3)    Liability  of  officer  making  arrest. 

(76  Me.   128.) 

ELSEMORE  v.  LONGFELLOW. 
(Supreme  Judicial  Court  of  Maine.    May  5,  1884.) 

1.  FALSE  IMPRISONMENT— OFFICER  MAKING  ARREST— VOID  PROCESS. 

An  officer  making  an  arrest  under  process  issued  by  a  magistrate  hav- 
ing jurisdiction  over  the  subject-matter  of  the  case  is  liable  for  false  im- 
prisonment, if  the  process  is  void  for  lack  of  jurisdiction  over  the  person, 
and  if  he  can  see  from  its  face  that  it  is  void. 

2.  SAME— VALIDITY  OF  PROCESS. 

A  complaint  for  the  removal  of  a  pauper  to  the  town  where  she  had 
her  settlement  did  not  allege,  as  statute  required,  that  the  overseers  gave 
a  written  order  to  any  person  to  remove  the  pauper,  nor  that  such  person 
requested  the  pauper  to  go  with  him  and  that  she  refused  or  resisted,  nor 
that  such  person  made  the  complaint.  Held,  that  a  warrant  issued 
thereon  was  void  on  its  face,  as  showing  lack  of  jurisdiction  over  the 
person,  so  as  not  to  justify  an  officer  in  making  an  arrest  thereunder. 

Action  by  Annie  D.  Elsemore  against  Isaac  P.  Longfellow  for  false 
imprisonment.  Heard  on  report.  Action  stands  for  trial. 

The  complaint  alleged  that  the  plaintiff  had  been  supported  in  the 
town  of  East  Machias  by  th.e  town  of  Wesley;  that  the  overseers  of 
the  poor  in  Wesley,  desiring  her  removal  thither,  went  to  the  house  of 
her  mother,  who  refused  to  deliver  her  up  or  to  inform  them  where  she 
was;  and  that  she  utterly  refused  to  return  to  the  place  of  her  settle- 
ment. A  warrant  was  issued  thereon,  under  which  the  defendant,  a 
deputy  sheriff,  arrested  her. 

By  the  terms  of  the  report,  if  the  warrant  and  return  and  other  facts 
stated  were  a  justification  to  the  officer,  the  plaintiff  should  be  nonsuit; 
otherwise  the  case  to  stand  for  trial. 

PETERS,  J.  This  is  an  action  against  an  officer  for  false  arrest 
and  imprisonment,  the  question  involving  the  sufficiency  and  validity 
of  the  papers  under  which  the  officer  acted.  The  theory  of  the  law  is 
to  protect  an  officer  in  his  acts  of  official  duty  so  far  as  it  reasonably 
can  without  injustice  to  others.  The  rule  should  be  liberally  interpret- 
ed in  the  officer's  behalf. 

The  proceedings  in  this  case  were  instituted  for  the  removal  of  a 
pauper  from  one  town  to  another  by  force  of  the  statutory  provisions 


240  LAW  OF  TORTS. 

contained  in  section  27,  c.  24,  Rev.  St.  1871,  and  chapter  157,  Laws 
1879.  The  subject-matter  was  within  the  jurisdiction  of  the  magis- 
trate who  issued  the  process  to  the  officer.  The  important  question 
is  whether  a  proper  process  was  issued  or  not;  whether  the  process 
disclosed  a  jurisdiction  over  the  person  of  the  plaintiff;  in  other  words, 
whether  the  process  under  which  the  defendant  acted  was  valid  or  void. 

The  officer  is  protected  unless  the  process  is  void,  and  unless  he  can 
see  from  the  face  of  the  process  itself  that  it  is  void.  If  the  process 
shows  its  want  of  validity,  the  officer  is  not  justified  in  acting  under  it. 
Irregularities  merely  that  are  amendable  do  not  vitiate  it.  An  officer 
has  a  right  to  suppose  that  what  may  be  amended  will  be  amended. 
Amendable  defects  do  not  even  justify  an  officer  in  refusing  to  serve 
the  process.  Although  the  cause  of  action  may  be  ever  so  informally 
and  imperfectly  expressed,  still,  if  a  proper  cause  is  indicated,  the 
process  may  be  legal  on  its  face.  The  officer  stands  upon  defensible 
ground  unless  the  process  be  absolutely  void.  McGlinchy  v.  Barrows, 
41  Me.  74;  Thurston  v.  Adams,  Id.  419;  Gurney  v.  Tufts,  37  Me.  130, 
58  Am.  Dec.  777;  Nowell  v.  Tripp,  61  Me.  426,  14  Am.  Rep.  572, 
and  cases;  Big.  Cas.  Torts,  277;  Bouv.  Law  Diet.  "Arrest." 

Under  those  rules,  and  upon  the  doctrine  of  the  cases  most  favorably 
interpreted  for  the  officer,  we  are  forced  to  the  conclusion  that  neither 
the  facts  indicated  upon  the  papers  themselves,  nor  those  adduced  in 
evidence,  show  that  the  magistrate  had  any  jurisdiction  over  the  per- 
son of  the  plaintiff  in  the  matters  alleged.  The  proceedings  were  void. 

What  facts  would  it  have  been  necessary  to  allege  in  order  to  af- 
ford protection  to  the  officer  ?  That  the  plaintiff  was  a  pauper ;  that  is 
alleged.  That  the  overseers  gave  a  written  order  to  some  person  to 
remove  the  pauper;  that  is  not  alleged.  That  such  person  requested 
the  pauper  to  go  with  him,  and  that  she  refused  or  resisted ;  that  is  not 
alleged.  That  such  person  makes  the  complaint;  that  is  not  alleged. 
No  statutory  cause  is  alleged.  A  naked  order  to  arrest  would  not  have 
been  sufficient.  Reason  must  be  given.  Illegal  reasons  are  given. 
Legal  reasons  are  omitted.  If  the  illegal  allegations  be  expunged,  the 
complaint  would  be  little  more  than  blank  paper. 

The  act  of  1879  allows  the  complaint  to  be  amended  at  any  time  be- 
fore judgment  according  to  the  facts.  It  was  not  amended.  It  must 
be  amended  according  to  the  facts,  and  not  contrary  to  or  beyond  the 
facts.  There  is  no  evidence  or  suggestion  of  the  existence  of  any  facts 
to  be  incorporated  into  the  complaint  beyond  those  alleged.  The 
officer  had  no  reason  to  believe  in  the  existence  of  any  facts  not  alleged 
which  could  have  made  the  proceedings  valid  or  his  own  acts  justifiable. 

Action  stands  for  trial. 

WALTON,  BARROWS,  DANFORTH,  and  LIBBEY,  JJ.,  con- 
curred. 

(The  leading  case  is  Savacool  v.  Boughton,  5  Wend.  170,  21  Am.  Dec.  181, 
in  which  these  conclusions  are  drawn:  [1]  "If  a  mere  ministerial  officer 


FALSE   IMPRISONMENT.  241 

executes  any  process,  upon  the  face  of  which  it  appears  that  the  court  which 
issued  it  had  not  Jurisdiction  of  the  subject-matter  or  of  the  person  against 
whom  it  is  directed,  such  process  will  afford  him  no  protection  for  acts  done 
under  it.  [2]  If  the  subject-matter  of  a  suit  is  within  the  jurisdiction  of  a 
court,  but  there  is  a  want  of  jurisdiction  as  to  the  person  or  place,  the  officer 
who  executes  process  issued  in  such  suit  is  no  trespasser,  unless  the  want  of 
jurisdiction  appears  by  such  process."  To  the  same  effect  are  Gurney  v.  Tufts, 
37  Me.  130,  58  Am.  Dec.  777;  Jacques  v.  Parks,  96  Me.  268,  52  Atl.  763; 
Sandford  v.  Nichols,  13  Mass.  286,  7  Am.  Dec.  151 ;  Batchelder  v.  Currier,  45 
N.  H.  460 ;  United  Lines  Tel.  Co.  v.  Grant,  137  N.  Y.  7,  32  N.  E.  1005 ;  Lewis 
v.  Palmer,  6  Wend.  370;  Sheldon  v.  Hill,  33  Mich.  171;  McLendon  v.  State, 
92  Tenn.  520,  22  S.  W.  200,  21  L.  R.  A.  738.  But  if  -the  court  has  no  juris- 
diction over  the  subject-matter,  the  process,  though  apparently  regular,  is 
not  merely  voidable,  but  void,  and  the  officer  executing  the  process  has  no 
authority,  and  is  therefore  liable  to  an  action ;  as,  e.  g.,  where  the  law  under 
which  the  process  is  issued  is  unconstitutional.  Warren  v.  Kelley,  80  Me.  512, 
531,  15  Atl.  49 ;  Fisher  v.  McGirr,  1  Gray,  1,  45,  61  Am.  Dec.  381 ;  Barker 
v.  Stetson,  7  Gray,  53,  66  Am.  Dec.  457 ;  Campbell  T.  Sherman,  35  Wis.  103.) 


Arrest  upon  process  voidable  for  "error"  or  "irregu- 
larity." 

(103  N.  Y.  84,  8  N.  E.  251.) 

FISCHER  v.  LANGBEIN  et  al.  (in  part). 

(Court  of  Appeals  of  New  York.    October  5,  1886.) 

1.  FALSE  IMPRISONMENT— ARREST  UNDEE  VOID  OB  IRREGULAR  PROCESS. 

The  liability  of  an  attorney  who  causes  the  issue  of  void  or  irregular 
process,  for  loss  or  injury  thereby  occasioned  to  the  party  against  whom 
it  is  enforced,  attaches,  in  the  case  of  void  process,  when  the  wrong  is 
committed,  no  preliminary  proceeding  to  vacate  or  set  it  aside  being 
necessary  to  the  maintenance  of  an  action.  Process,  however,  that  a 
court  has  general  jurisdiction  to  award,  but  which  is  irregular  by  reason 
of  the  non-performance  by  the  party  procuring  it  of  some  preliminary 
requisite,  or  of  the  existence  of  some  fact  not  disclosed  in  his  application 
therefor,  must  be  regularly  vacated  or  annulled  by  an  order  of  the  court 
before  an  action  can  be  maintained  for  damages  occasioned  by  its  en- 
forcement 

2.  SAME— ARREST  ON  PROCESS  ISSUED  ON  ERRONEOUS  JUDGMENT  OB  ORDER. 

When  a  court  is  called  upon  to  adjudicate  upon  doubtful  questions  of 
law,  or  determine  as  to  inferences  to  be  drawn  from  circumstances  reason- 
ably susceptible  of  different  interpretations  or  meanings,  and  calling  for 
the  exercise  of  the  judicial  function  in  their  determination,  an  order  or 
process  based  on  its  decision,  although  afterwards  vacated  or  set  aside 
as  erroneous,  is  not  void,  nor  does  it  subject  the  party  procuring  it  to  an 
action  for  damages  thereby  inflicted. 

3.  SAME. 

The  power  of  a  court  to  entertain  Jurisdiction  of  an  action  or  pro- 
ceeding does  not  depend  upon  the  existence  of  a  substantial  cause  of 
action,  but  upon  the  performance  by  the  party  of  the  prerequisites  au- 
thorizing it  to  determine  whether  one  exists  or  not 

CHASE  (2o  ED.) — 16 


1M2  LAW  OF  TORTS. 

4.  SAME— COMMITMENT  FOB  CONTEMPT. 

In  proceedings  by  the  defendants  in  an  action  to  punish  the  plaintiff 
therein  for  contempt,  all  the  facts  constituting  the  alleged  contempt  were 
undisputed,  and  were  presented  to  the  court  having  jurisdiction  of  the 
proceedings  for  its  consideration.  On  the  hearing  it  was  conceded  that 
the  plaintiff  had  disobeyed  an  order  of 'the  court,  and  the  only  question 
was  whether  such  disobedience  defeated,  impaired,  impeded,  or  preju- 
diced any  right  or  remedy  of  the  defendants.  The  court  decided  that 
plaintiff  was  guilty  of  contempt,  and  ordered  him  to  be  committed ;  but 
its  order  was  reversed  on  appeal  as  erroneous  in  respect  of  the  question 
of  law.  Held,  that  such  error  did  not  affect  the  jurisdiction  of  the  court, 
nor  render  the  commitment  void,  and  plaintiff  could  not  maintain  an 
action  for  false  imprisonment  for  his  arrest  and  imprisonment  under  the 
commitment. 

Appeal  from  Supreme  Court,  General  Term,  First  Department. 

Action  by  John  Fischer  against  George  Langbein  and  J.  C.  Julius 
Langbein  for  false  imprisonment.  Defendants  were  the  attorneys  for 
the  defendants  in  a  previous  action  brought  by  the  plaintiff,  John 
Fischer,  for  the  dissolution  of  an  unincorporated  association.  In  that 
action  an  order  of  reference  was  made,  in  which  was  inserted,  with  the 
consent  of  plaintiff,  a  provision  that  plaintiff  should  pay  the  costs  of  the 
reference  if  the  referee  should  find  in  favor  of  defendants  as  to  certain 
questions.  The  referee  did  so  find,  but  plaintiff  neglected  to  take  up 
his  report  and  pay  the  fees.  Thereupon  the  defendants'  attorneys, 
defendants  in  this  action,  procured  an  order  that  plaintiff  pay  such  fees 
within  three  days,  or  show  cause  why  he  should  not  be  committed  for 
contempt;  and,  on  a  hearing  upon  the  return  of  the  order  to  show 
cause,  the  court  decided  that  plaintiff  was  guilty  of  contempt,  and  or- 
dered that  a  commitment  issue,  which  was  done,  and  plaintiff  was  com- 
mitted to  jail  thereon.  The  order  for  the  commitment  was  afterwards 
reversed,  on  appeal,  and  thereafter  plaintiff  brought  this  action  against 
defendants  for  their  participation  as  attorneys  in  said  proceedings. 
Plaintiff's  complaint  was  dismissed  at  the  trial,  and  judgment  for  de- 
fendants was  entered  thereon,  which  was  affirmed  by  the  general  term 
on  appeal.  From  the  judgment  of  the  general  term  plaintiff  appealed. 

RUGER,  C.  J.  It  cannot  be  disputed  but  that  an  attorney  who  causes 
void  or  irregular  process  to  be  issued  in  an  action,  which  occasions 
loss  or  injury  to  a  party  against  whom  it  is  enforced,  is  liable  for  the 
damages  thereby  occasioned.  In  the  case  of  void  process  the  liability 
attaches  when  the  wrong  is  committed,  and  no  preliminary  proceeding 
is  necessary  to  vacate  or  set  it  aside  as  a  condition  to  the  maintenance 
of  an  action.  Process,  however,  that  a  court  has  general  jurisdiction 
to  award,  but  which  is  irregular  by  reason  of  the  non-performance, by 
the  party  procuring  it  of  some  preliminary  requisite,  or  the  existence  of 
some  fact  not  disclosed  in  his  application  therefor,  must  be  regularly 
vacated  or  annulled  by  an  order  of  the  court  before  an  action  can  be 
maintained  for  damages  occasioned  by  its  enforcement.  Day  v.  Bach, 


FALSE   IMPRISONMENT. 

8/  N.  Y.  56.  In  such  cases  the  process  is  considered  the  act  of  the 
party,  and  not  that  of  the  court,  and  he  is  therefore  made  liable  for  the 
consequences  of  his  act.  Void  process  is  such  as  the  court  has  no 
power  to  award,  or  has  not  acquired  jurisdiction  to  issue  in  the  par- 
ticular case,  or  which  does  not,  in  some  material  respect,  comply  in 
form  with  the  legal  requisites  of  such  process,  or  which  loses  its  vitality 
in  consequence  of  non-compliance  with  a  condition  subsequent,  obedi- 
ence to  which  is  rendered  essential.  Irregular  process  is  such  as  a 
court  has  general  jurisdiction  to  issue,  but  which  is  unauthorized  in  the 
particular  case  by  reason  of  the  existence  or  non-existence  of  some  fact 
or  circumstance  rendering  it  improper  in  such  a  case.  In  all  cases 
where  a  court  has  acquired  jurisdiction  in  an  action  or  proceeding,  its 
order  made  or  judgment  rendered  therein,  is  valid  and  enforceable, 
and  affords  protection  to  all  persons  acting  under  it,  although  it  may  be 
afterward  set  aside  or  reversed  as  erroneous.  Simpson  v.  Hornbeck, 
3  Lans.  53.  Errors  committed  by  a  court  upon  the  hearing  of  an 
action  or  proceeding  which  it  is  authorized  to  hear,  but  not  affecting 
any  jurisdictional  fact,  do  not  invalidate  its  orders,  or  authorize  a  party 
to  treat  them  as  void,  but  can  be  taken  advantage  of  only  by  appeal  or 
motion  in  the  original  action.  Day  v.  Bach,  supra. 

There  is  no  claim  made  that  the  order  and  commitment  under  which 
the  imprisonment  complained  of  in  this  case  was  effected,  was  void, 
or  even  irregular,  except  for  the  alleged  erroneous  determination  made 
by  the  special  term  upon  the  merits  of  the  application.  This  determi- 
nation consisted  in  holding  that  a  contempt  had  been  committed  by 
the  plaintiff,  while,  upon  appeal,  this  court  held  otherwise.  All  of 
the  facts  constituting  the  alleged  contempt  were  undisputed,  and  were 
presented  to  the  special  term  for  its  consideration  upon  the  hearing. 
After  hearing  the  parties  it  decided  that  a  contempt  had  been  com- 
mitted, and  ordered  the  imprisonment  complained  of.  It  was  con- 
ceded on  that  hearing  that  the  plaintiff  has  disobeyed  an  order  of  the 
court,  and  the  only  question  presented  for  its  consideration  was  whether 
such  disobedience  "defeated,  impaired,  impeded,  or  prejudiced"  a  right 
or  remedy  of  the  defendants.1  Upon  the  appeal  to  this  court  it  was 
held  that  the  case  did  not  clearly  show  that  any  right  or  remedy  of  the 
defendants  had  been  defeated,  impaired,  impeded,  or  prejudiced  by 
the  disobedience  alleged,  and  the  order  adjudging  the  plaintiff  guilty 
of  a  contempt  was  for  that  reason  reversed  as  erroneous.  Fischer  v. 
Raab,  81  N.  Y.  235.  A  simple  question  of  law  was  thus  presented  to 
the  court  as  to  whether  all  of  the  elements  constituting  the  offense  of 
contempt  appeared  on  the  application  for  the  commitment.  Whether 
they  did  or  did  not  in  no  sense  constituted  a  jurisdictional  question. 

1  "Civil  contempt"  is  defined  by  the  statute  law  of  New  York 'as  a  "neglect 
or  violation  of  duty,  or  other  misconduct,  by  which  a  right  or  remedy  of  a 
party  to  a  civil  action  or  special  proceeding  may  be  defeated,  impaired,  im- 
peded, or  prejudiced."  Code  Civ.  Proc.  §  14. 


244  LAW   OF   TORTS. 

The  court  concededly  had  jurisdiction  of  the  parties  and  the  subject- 
matter  of  the  application,  and  we  think  authority  to  determine  whether 
a  contempt  had  been  committed  or  not;  and  the  question  for  its  con- 
sideration was  whether  the  facts  of  the  case  brought  it  within  the 
statutory  definition  of  a  "contempt."  An  erroneous  decision  of  that 
question  in  no  sense  affected  the  jurisdiction  of  the  court  over  the  sub- 
ject-matter of  the  application.  In  a  similar  case  it  was  said  by  this 
court  that  the  fact  that  a  justice  of  the  peace  "had  jurisdiction  of  the 
person  of  the  plaintiff,  and  of  the  subject-matter  then  pending,  did  not 
give  him  judicial  authority  to  adjudge  her  guilty  of  a  contempt,  and 
to  imprison  her  therefor.  To  have  that  authority  there  must  have 
arisen  before  him  facts  which  gave  him  power  to  consider  the  ques- 
tion whether  there  had  been  a  contempt  committed  by  her.  When  facts 
arose  which  gave  him  that  power,  he  had  a  right  to  adjudicate  upon 
them,  and  is  not  liable  to  an  action,  though  he  may  have  held  erro- 
neously as  matter  of  law."  Rutherford  v.  Holmes,  66  N.  Y.  370. 

In  the  present  case  the  court  made  an  order,  upon  the  application  of 
the  plaintiff,  referring  a  certain  disputed  question  of  fact  to  a  referee 
to  hear  and  determine,  and,  in  case  such  report  was  against  the  plaintiff, 
that  he  should  pay  the  referee's  fees  incurred  thereon.  The  plaintiff 
cannot  question  the  validity  of  this  order,  for  it  was  made  at  his  request, 
and  upon  his  stipulation  to  pay  the  fees  in  the  event  provided  for.  The 
order  was  therefore  lawful,  and  such  as  the  court  had  a  right  to  make 
under  the  circumstances.  The  report  of  the  referee  being  against  the 
plaintiff,  he  was  required  to  pay  the  fees,  and  take  it  up ;  but  this  he 
neglected  and  refused  to  do.  For  this  refusal  he  was  adjudged  guilty 
of  contempt.  The  disobedience  of  its  order  by  the  plaintiff  gave  the 
•court  jurisdiction  of  the  subject-matter,  and  called  upon  it  to  determine 
whether  a  contempt  had  been  committed  or  not.  The  right  to  adjudi- 
cate upon  this  question  did  not  depend  upon  the  fact  whether  the  plain- 
tiff was  guilty  of  a  contempt,  but  whether  a  case  had  been  made  call- 
ing for  an  adjudication  upon  that  question.  The  power  of  the  court 
to  entertain  jurisdiction  of  an  action  or  proceeding  does  not  depend 
upon  the  existence  of  a  sustainable  cause  of  action,  but  upon  the  per- 
formance by  the  party  of  the  prerequisites  authorizing  it  to  determine 
whether  one  exists  or  not. 

In  Harman  v.  Brotherson,  I  Denio,  537,  the  defendant,  a  judicial 
officer,  had  awarded  a  capias  upon  affidavits  which  did  not  disclose 
such  a  cause  of  action  as  subjected  the  defendant  to  arrest  therefor. 
He  was,  however,  arrested  and  imprisoned,  and  in  an  action  against 
the  judge  for  false  imprisonment  it  was  held  that  he  was  exempted 
from  liability  by  reason  of  the  judicial  character  of  his  determination. 

In  Landt  v.  Hilts,  19  Barb.  283,  a  county  judge  was  prosecuted  for 
false  imprisonment  for  granting  an  order  of  arrest  which  was  after- 
wards vacated  upon  the  ground  that  the  affidavit  upon  which  it  was 
founded  did  not  show  a  sufficient  cause  for  arresting  the  party.  It 


FALSE   IMPRISONMENT.  245 

was  held,  however,  that  the  "decision  and  the  order  protect  the  party 
applying  for  it,  and  the  attorney  and  all  persons  acting  in  obedience  to 
the  order;"  that  the  affidavit  presented  "a  state  of  facts  which  called 
upon  the  officer  to  pass  judicially  upon  the  question,  and  to  determine 
whether  a  case  for  an  order  was  made  out  or  not."  "It  presents,  to 
say  the  least,  a  colorable  case,  and  that  is  enough  to  protect  the  officer 
who  issued  it."  It  was  further  said  "that  the  doctrine  that  the  judicial 
officer  is  protected  whenever  he  has  jurisdiction,  and  enough  is  shown 
to  call  upon  him  for  a  decision,  even  though  he  err  grossly  and  even 
intentionally,  has  long  been  firmly  established.  Upon  the  same  princi- 
ple of  public  policy,  parties  who  in  good  faith  institute  the  proceedings, 
and  act  under  and  in  accordance  with  judicial  determination,  should 
be  protected  from  accountability  as  trespassers  whenever  the  officer  is 
entitled  to  protection."  This  case  is  largely  and  approvingly  quoted 
from  in  Marks  v.  Townsend,  97  N.  Y.  590,  599. 

In  Miller  v.  Adams,  7  Lans.  133,  affirmed  in  this  court,  (52  N.  Y. 
409,)  the  defendant  was  prosecuted  for  false  imprisonment  in  procur- 
ing an  attachment  for  contempt  against  a  third  party  for  not  appearing 
before  the  judge  in  supplemental  proceedings,  in  obedience  to  an  order 
requiring  him  to  do  so.  The  affidavit  upon  which  the  attachment  was 
issued  was  held,  upon  appeal,  to  be  defective,  and  not  to  show  the  ex- 
istence of  the  contempt  alleged.  It  was  held,  however,  that  it  consti- 
tuted a  protection  as  well  to  the  officer  issuing  it  as  to  the  party  pro- 
curing it;  that  the  officer  issuing  the  attachment  had  "jurisdiction  of 
the  matter,  and  acted  judicially  in  making  the  order,  and  it  is  entirely 
clear  that  lie  cannot  be  made  answerable  as  a  trespasser  for  an  error 
in  judgment." 

It  seems  to  us  that  the  case  of  Williams  v.  Smith,  108  E.  C.  L.  596, 
is  undistinguishable  in  principle  from  this.  As  concisely  stated  by 
Justice  Erie,  it  was  as  follows :  "The  master  of  the  rolls  decided  on 
the  facts  that  Williams  was  guilty  of  contempt  in  not  obeying  the  or- 
der. Such  is  the  judgment  of  the  master  of  the  rolls  on  the  very  facts 
between  the  parties.  The  legal  inference  which  that  learned  judge 
drew  from  the  facts  which  were  presented  to  him  on  the  part  of  Wil- 
liams was  that  he  was  guilty  of  a  contempt.  Upon  appeal  the  lords 
justices  were  of  opinion  that  the  master  of  the  rolls  came  to  an  erro- 
neous conclusion,  and  they  reversed  his  decision.  That  is  a  totally 
different  thing  from  setting  aside  the  attachment  for  irregularity  in 
the  proceedings."  It  was  held  that  the  decision  of  the  master  of  the 
rolls  was  a  judicial  determination  that  protected  the  parties  acting  under 
it,  as  well  as  the  officers  making  it. 

The  rule  to  be  deduced  from  these  authorities  seems  to  be  that  when 
a  court  is  called  upon  to  adjudicate  upon  doubtful  questions  of  law,  or 
determine  as  to  inferences  to  be  drawn  from  circumstances  reasonably 
susceptible  of  different  interpretations  or  meanings,  and  calling  for 
the  exercise  of  the  judicial  function  in  their  determination,  its  deci- 


246  LAW  OF  TORTS. 

sion  thereon  does  not  render  an  order  or  process  based  upon  it,  although 
afterwards  vacated  or  set  aside  as  erroneous,  void,  or  subject  the  party 
procuring  it  to  an  action  for  damages  thereby  inflicted.  Where  the 
jurisdiction  of  the  court  is  made  to  depend  upon  the  existence  of  some 
fact  of  which  there  is  an  entire  absence  of  proof,  it  has  no  authority 
to  act  in  the  premises ;  and  if  it,  nevertheless,  proceeds  and  entertains 
jurisdiction  of  the  proceeding,  all  of  its  acts  are  void,  and  afford  no 
justification  to  the  parties  instituting  them  as  against  parties  injuri- 
ously affected  thereby.  But  if  the  facts  presented  to  the  court  call 
upon  it  for  the  exercise  of  judgment  and  reason,  upon  evidence  which 
might  in  its  consideration  affect  different  minds  differently,  a  judicial 
question  is  presented,  which,  however  decided,  does  not  render  either 
party  or  the  court  making  it  liable  for  the  consequences  of  its  action. 

The  judgment  of  the  court  below  should  be  affirmed,  with  costs.  All 
concur. 

(Other  good  illustrations  of  "error"  are  Hallock  v.  Dominy,  69  N.  Y.  238; 
Marks  v.  Townsend,  97  N.  Y.  590 ;  Swart  v.  Rickard,  148  N.  Y.  264,  42  N.  E. 
665;  Booth  v.  Kurrus,  55  N.  J.  Law,  370,  26  Atl.  1013;  Johnson  v.  Morton, 
94  Mich.  1,  53  N.  W.  816;  Gassier  v.  Fales,  139  Mass.  461,  1  N.  B.  922.  In 
such  cases  neither  the  judge,  nor  the  party  suing  out  the  process,  nor  the 
officer  serving  the  process  is  liable  for  false  imprisonment.  Id.  "Irregular- 
ity" is  explained  in  Marks  v.  Townsend,  97  N.  Y.  590,  601,  as  generally  mean- 
ing "some  irregular  action  by  the  party  or  his  attorney,  such  as  the  issuing 
of  a  ca.  sa.  before  a  ft.  fa.  has  been  issued  and  returned."  Chapman  v.  Dyett, 
11  Wend.  31,  25  Am.  Dec.  598.  In  Everett  v.  Henderson,  146  Mass.  89,  92, 
14  N.  E.  932,  936,  4  Am.  St.  Rep.  284,  this  statement  is  made :  "Processes  good 
on  their  face  may  be  absolutely  void  for  want  of  jurisdiction  in  the  court  or 
magistrate  that  issues  them,  or  they  may  be  voidable  for  error,  or  they  may 
be  voidable  for  irregularity  in  obtaining  them.  Processes  voidable  for  error 
do  not  subject  the  person  who  directs  their  use  to  any  liability,  even  after 
they  are  set  aside.  But  processes  irregularly  obtained  may  be  set  aside,  and 
then,  as  against  those  who  obtained  them,  acts  done  under  them  are  deemed 
to  have  been  done  illegally."  To  the  same  effect  is  Winchester  v.  Everett,  80 
Me.  535,  15  Atl.  596,  1  L.  R.  A.  425,  6  Am.  St  Rep.  228.  Other  examples  of 
"irregularity"  are  these :  Issuing  an  execution  on  a  judgment  which  had  be- 
come dormant  by  lapse  of  time,  without  reviving  the  judgment  by  scire  facias 
[Blanchenay  v.  Burt,  4  AdL  &  El.  (N.  S.)  707] ;  issuing  an  execution  against  an 
absent  defendant,  without  filing  a  bond  pursuant  to  statute  [Gardiner  Mfg. 
Co.  v.  Heald,  5  Me.  381,  17  Am.  Dec.  248 ;  see  also  Codrington  v.  Lloyd,  8  Ad. 
&  El.  449 ;  Prentice  v.  Harrison,  4  Ad.  &  El.  (N.  S.)  852 ;  Ackroyd  v.  Ackroyd, 
3  Daly,  38 ;  Kerr  v.  Mount,  28  N.  Y.  659 ;  Simpson  v.  Hornbeck,  3  Lans.  53 ; 
McFadden  v.  Whitney,  51  N.  J.  Law,  391,  18  Atl.  62].) 


FALSE   IMPRISONMENT.  247 

Arrest  upon  a  "warrant,  where  a  warrant  is  by  law 

necessary. 

(70  Me.  464.) 

HARWOOD  v.  SIPHERS  (in  part). 
(Supreme  Judicial  Court  of  Maine.    January  5,  1880.) 

FALSE  IMPRISONMENT— JUSTIFICATION— ARREST  UNDER  PROCESS. 

Under  Const.  Me.  art.  1,  §  5,  providing  that  no  warrant  to  seize  any  per- 
son shall  issue  without  a  special  designation  of  the  person  to  be  seized,  a 
warrant  which  merely  described  the  accused  as  "a  person  whose  name  is 
unknown,  but  whose  person  is  well  known,  of  V.,  in  the  county  of  K.," 
was  insufficient  to  protect  an  officer  making  an  arrest  thereunder  from 
liability  for  false  imprisonment. 

Action  of  trespass  for  false  imprisonment  by  Blake  A.  Harwood 
against  Joseph  Siphers.  Verdict  for  plaintiff,  and  defendant  excepts. 
Exceptions  overruled. 

It  was  admitted  that  the  defendant  was  a  deputy  sheriff  of  the  county, 
duly  qualified. 

In  justification  of  the  acts  complained  of  the  defendant  read  in  evi- 
dence a  certified  copy  of  a  warrant  issued  by  the  judge  of  the  police 
court  of  the  city  of  Gardiner,  in  said  county  of  Kennebec,  dated  October 
2,  1878,  which,  with  the  complaint  therein  referred  to,  the  officer's  re- 
turn thereon,  and  the  doings  of  said  police  judge  are  parts  of  the  case. 

The  only  description  of  the  accused  contained  in  the  complaint  (to 
which  the  warrant  referred)  or  in  the  warrant  is :  "A  person  whose 
name  is  unknown,  but  whose  person  is  well  known,  of  Vassalboro,  in 
the  county  of  Kennebec." 

Defendant  contended  that  said  complaint  and  warrant  were  sufficient 
authority  for  him  to  do  all  that  he  did  do,  and  relied  upon  the  same 
as  a  complete  justification  for  all  acts  proved  to  have  been  committed 
by  him  in  the  premises. 

The  presiding  judge  ruled  that  said  warrant  was  insufficient  to  au- 
thorize the  arrest  and  detention  of  the  plaintiff,  and  that  the  same  did 
not  contain  any  sufficient  description  of  the  person  whom  the  officer 
was  commanded  by  the  magistrate  to  arrest. 

SYMONDS,  J.  The  defendant  is  a  deputy  sheriff,  who  is  sued  in 
this  action  for  an  illegal  arrest  and  false  imprisonment  of  the  plaintiff. 
He  justifies  under  a  warrant  from  the  police  court  of  the  city  of 
Gardiner,  issued  upon  complaint  made  by  himself  against  the  present 
plaintiff  for  larceny.  The  only  description  of  the  accused  in  the  com- 
plaint or  warrant  is  in  the  following  terms :  "A  person  whose  name  is 
unknown,  but  whose  person  is  well  known,  of  Vassalboro,  ui  the  county 
of  Kennebec." 


248  LAW  OF  TORTS. 

The  presiding  judge  ruled  that  a  warrant  containing  only  this  descrip- 
tion of  the  accused,  although  issuing  from  a  court  of  competent  juris- 
diction, failed  upon  its  face  to  afford  protection  to  an  officer  who  ar- 
rested and  detained  a  prisoner  upon  it 

We  think  the  ruling  was  correct.  The  knowledge  of  the  complainant 
of  the  person  intended  by  the  warrant  does  not  aid  a  defect  in  it.  The 
averment  of  such  knowledge,  therefore,  cannot  supply  any  deficiency 
otherwise  existing.  This  is  substantially  a  warrant  against  a  resident 
of  Vassalboro  whose  name  is  unknown,  without  further  designation 
or  description. 

"No  warrant  to  search  any  place,  or  seize  any  person  or  thing,  shall 
issue  without  a  special  designation  of  the  place  to  be  searched,  and  the 
person  or  thing  to  be  seized."  Const.  Me.  art.  I,  §  5. 

The  warrant  in  this  case  is  in  accordance  neither  with  the  require- 
ments of  the  Constitution  nor  with  the  precedents  of  the  criminal  law. 

"If  the  name  of  the  party  to  be  arrested  be  unknown,  the  warrant  may 
be  issued  against  him  by  the  best  description  the  nature  of  the  case  will 
allow."  i  Chit.  Cr.  L.  39 ;  Com.  v.  Crotty,  10  Allen,  404,  87  Am.  Dec. 
669. 

The  omission  of  the  name,  as  a  means  of  identification,  is  justified 
only  on  the  ground  of  necessity ;  and  when  this  is  not  known  the  war- 
rant must  indicate  on  whom  it  is  to  be  served  in  some  other  way,  by 
a  specification  of  his  personal  appearance,  his  occupation,  his  precise 
place  of  residence  or  of  labor,  his  recent  history,  or  some  facts  which 
give  the  special  designation  that  the  Constitution  requires. 

The  conclusion  from  all  the  authorities,  as  given  in  Bishop  on  Crim- 
inal Procedure,  §  680,  is  "that,  both  at  the  common  law  and  in  con- 
formity with  our  constitutional  guaranties,  proceedings  may  be  insti- 
tuted and  carried  on  against  an  offender  whose  name  cannot  be  ascer- 
tained; but  in  such  a  case  such  a  description  of  him  must  be  given 
as  will  point  to  his  identity,  while  yet  there  is  no  exact  form  of  the 
description  required.  It  must  be  suggested  by  the  particular  circum- 
stances; and,  of  course,  it  must  conform  also  to  any  statutory  pro- 
visions which  may  exist  in  the  individual  state." 

The  warrant  in  this  case  was  so  irregular  and  insufficient  upon  its 
face  as  to  afford  no  protection  to  the  officer  who  proceeded  to  make  an 
arrest  upon  it. 

Exceptions  overruled.     Judgment  on  the  verdict. 

APPLETON,  C.  J.,  and  WALTON,  BARROWS,  DAXFORTH, 
jnd  LIBBEY,  JJ.,  concurred. 

(Where  a  warrant  recited  a  complaint  against  John  R.  Miller  for  a  felony, 
and  commanded  the  officer  to  arrest  the  "said  William  Miller,"  (held,  that 
the  officer  was  not  justified  in  arresting  John  R.  Miller,  though  he  was  the 
person  intended.  Miller  v.  Foley,  28  Barh.  030.  So  where  Vandy  M.  West, 
the  man  intended,  was  arrested  on  a  warrant  against  "James  West."  West 


FALSE   IMPRISONMENT.  249 

T.  Cabell,  153  U.  8.  78,  14  Sup.  Ct  752,  38  L.  Ed.  643.  This  case  says  [citing 
many  decisions] :  "By  the  common  law,  a  warrant  for  the  arrest  of  a  person 
charged  with  crime  must  truly  name  him,  or  describe  him  sufficiently  to 
identify  him.  If  it  does  not,  the  officer  making  the  arrest  is  liable  to  an 
action  for  false  imprisonment."  Where  a  statute  prescribed  that  an  arrest 
could  not  be  made  at  night  on  a  warrant  for  a  misdemeanor  unless  by  direction 
of  the  magistrate  indorsed  upon  the  warrant,  and  officers  did  make  an  arrest 
at  night  upon  a  warrant  not  having  such  indorsement,  they  were  held  liable 
for  false  imprisonment  Murphy  v.  Kron,  20  Abb.  N.  C.  259.) 


Arrest  -without  -warrant. 
A.  In  cases  of  felony. 

(40  N.  Y.  463.) 

BURNS  v.  ERBEN  et  al.  (In  part). 
(Court  of  Appeals  of  New  York.    June  12,  1869.) 

BY  PBIVATS  INDIVIDUAL  WITHOUT  WABBANT  FOB  FELONY. 
An  arrest  by  a  private  individual  without  a  warrant,  for  felony,  Is  ex- 
cused only  where,  a  felony  has  in  fact  been  committed,  and  there  was 
reasonable  ground  to  suspect  the  person  arrested  of  its  commission;  but 
an  officer  is  justified  in  making  an  arrest  without  warrant,  though  no 
felony  has  been  actually  committed,  if  he  has  reasonable  ground  to  sus- 
pect that  one  has  been,  and  that  the  person  arrested  committed  it. 

2.  FALSE  IMPBISONMENT — PBOBABLE  CAUSE — QUESTION  FOB  COUBT. 

Where  there  is  no  conflict  in  the  evidence  as  to  the  circumstances  in 
an  action  for  false  imprisonment,  the  question  of  probable  cause  or  rea- 
sonable ground  of  suspicion  is  one  of  law,  and  not  for  the  jury. 

Action  for  false  imprisonment  of  plaintiff.  A  larceny  had  been  com- 
mitted in  the  house  of  defendant's  father  at  a  time  when  plaintiff,  who 
had  been  visiting  a  servant,  was  the  only  person,  not  a  member  of  the 
family,'  present  in  that  part  of  the  house  from  which  the  property  was 
taken.  Defendant,  a  private  person,  entered  a  complaint  against  her 
for  larceny,  and  assisted  in  her  arrest  by  an  officer  without  a  warrant. 
She  was  taken  to  the  police  station,  where  she  was  detained  for  a  few 
minutes,  and  was  then  permitted  to  return  to  her  residence.  The, 
officer,  Frost,  was  sued  with  the  defendant,  but  submitted  to  a  default. 
From  a  judgment  of  nonsuit  plaintiff  appeals.  Affirmed. 

WOODRUFF,  J.  By  section  8  of  the  act  to  establish  a  metropolitan 
police  district,  passed  April  15,  1857  (chapter  569,  Laws  1857),  the 
members  of  the  police  force  of  that  district  are  given,  "in  every  part 
of  the  state  of  New  York,  all  the  common  law  and  statutory  powers 
of  constables,  except  for  the  service  of  civil  process."  And  in  the 
amendatory  act  passed  April  10,  1860  (chapter  259,  Laws  1860),  it  is 
declared,  in  the  twenty-eighth  section,  that  the  members  of  the  police 


250  LAW  OF  TORTS. 

force  of  that  district  "shall  possess  in  every  part  of  the  state  all  the 
common  law  and  statutory  powers  of  constables,  except  for  the  service 
of  civil  process." 

In  pursuance  of  information  given  by  the  defendant  Erben,  the  de- 
fendant Frost,  accompanied  by  Erben,  arrested  the  plaintiff  without 
warrant,  took  her  to  the  police  station,  where  she  was  detained  a  few 
minutes,  and  after  some  conversation  with  the  officer  in  charge  she  was 
permitted  to  return  to  her  residence.  For  this  she  has  brought  the 
present  action  for  false  imprisonment. 

A  felony  had  been  committed  that  evening  at  the  house  of  Mr.  Henry 
Erben,  the  defendant's  father.  On  that  point  there  is  no  dispute  or 
conflict.  The  plaintiff  had  visited  the  house  that  evening,  and,  accord- 
ing to  the  information  upon  which  the  defendant  acted,  was  the  only 
person  not  a  member  of  the  family  who  had  been  in  the  basement. 
Silver  had  been  stolen  from  the  basement.  It  was  there  when  the 
plaintiff  entered  and  until  after  8  o'clock,  and  it  was  missed  very 
shortly  after  she  left  the  house.  Of  these  facts  the  proof  was  distinct 
and  without  contradiction. 

Upon  a  report  of  these  facts,  Frost,  accompanied  by  the  defendant 
Erben,  made  the  arrest  as  above  stated. 

The  inquiry  is  therefore  whether,  under  the  statutes  above  cited 
and  the  common-law  rule  in  respect  of  arrests  made  or  aided  by  private 
persons,  the  plaintiff  was  entitled  to  recover.  There  were  no  facts  in 
dispute  requiring  the  submission  of  any  question  to  the  jury,  unless  it 
be  held  that  there  was  no  justification. 

I  have  no  doubt  upon  the  subject.  The  writers  upon  criminal  law 
and  the  reported  cases,  so  far  as  I  have  examined  them,  hold  uniform 
language. 

Lord  Tenterden,  C.  J.,  in  Beckwith  v.  Philby,  6  Barn.  &  Cres.  635, 
says:  "The  only  question  of  law  in  this  case  is  whether  a  constable, 
having  a  reasonable  cause  to  suspect  that  a  person  has  committed  a 
felony,  may  detain  such  person  until  he  can  be  brought  before  a  justice 
of  the  peace  to  have  his  conduct  investigated.  There  is  this  distinction 
between  a  private  individual  and  a  constable;  in  order  to  justify  the 
former  in  causing  the  imprisonment  of  a  person,  he  must  not  only  make 
out  a  reasonable  ground  of  suspicion,  but  he  must  prove  that  a  felony 
has  actually  been  committed;  whereas  a  constable  having  reasonable 
ground  to  suspect  that  a  felony  has  been  committed  is  authorized  to 
detain  the  party  suspected  until  inquiry  can  be  made  by  the  proper  au- 
thorities." See  Hawk.  P.  C.  book  2,  cc.  12,  13;  I  Russell  on  Crime, 
594,  595  ;  Steph.  Cr.  L.  242,  243  ;  I  Chit.  Cr.  L.  15,  17;  Samuel  v.  Payne, 
Doug.  358;  Lawrence  v.  Hedger,  3  Taunt.  14;  Regina  v.  Toohy,  2 
Ld.  Raymond,  130;  Hobbs  v.  Brandscomb,  3  Camp.  420;  Davis  v. 
Russell,  5  Bing.  354 ;  Cowles  v.  Dunbar,  2  Car.  &  P.  565. 

In  Ledwith  v.  Catchpole,  Cald.  Cas.29i,  I  Burns,  Justice,  pp.  130,  131, 
Lord  Mansfield  says,  in  an  action  against  the  officer:  "The  question 


FALSE   IMPRISONMENT.  251 

is  whether  a  felony  has  been  committed  or  not.  And  then  the  funda- 
mental distinction  is  that  if  a  felony  has  actually  been  committed  a 
private  person  may,  as  well  as  a  police  officer,  arrest ;  if  not,  the  ques- 
tion always  turns  upon  this,  was  the  arrest  bona  fide?  Was  the  act 
done  fairly  and  in  pursuit  of  an  offender,  or  by  design,  or  malice,  or 
ill  will?  *  *  *  It  would  be  a- terrible  thing  if,  under  probable 
cause,  an  arrest  could  not  be  made ;  many  an  innocent  man  has  and  may 
be  taken  up  upon  suspicion;  but  the  mischief  and  inconvenience  to 
the  public  in  this  point  of  view  is  comparatively  nothing ;  it  is  of  great 
consequence  to  the  police  of  the  country." 

The  justification  of  an  arrest  by  a  private  person  was  made  in  Allen 
v.  Wright,  8  Carr.  &  Payne,  522,  to  depend  on,  first,  the  fact  that  a 
felony  had  been  actually  committed ;  and,  second,  that  the  circumstan- 
ces were  such  that  a  reasonable  person,  acting  without  passion  and 
prejudice,  would  have  fairly  suspected  the  plaintiff  of  being  the  person 
who  did  it. 

These  principles  are  affirmed  in  this  state  in  Holley  v.  Mix,  3  Wend. 
350,  20  Am.  Dec.  702,  in  very  distinct  terms:  "If  a  felony  has  been 
committed  by  the  person  arrested,  the  arrest  may  be  justified  by  any 
person  without  warrant.  If  an  innocent  person  is  arrested  upon  suspi- 
cion by  a  private  individual,  such  individual  is  excused  if  a  felony  was 
in  fact  committed,  and  there  was  reasonable  ground  to  suspect  the 
person  arrested.  But  if  no  felony  was  committed  by  any  one,  and  a 
private  individual  arrest  without  warrant,  such  arrest  is  illegal,  though 
an  officer  would  be  justified  if  he  acted  upon  information  from  another 
which  he  had  reason  to  believe." 

The  fact  being  proved  in  this  case  that  a  felony  had  in  fact  been  com- 
mitted, I  have  no  hesitation  in  saying  that,  however  unfortunate  it 
was  to  the  plaintiff,  the  circumstances  fully  justified  the  suspicion  which 
led  to  her  arrest.  It  is  claimed  that  these  circumstances  should  have 
been  submitted  to  the  jury.  Not  so;  a  verdict  finding  no  reasonable 
ground  of  suspicion  would  have  been  against  evidence.  There  was  no 
conflict  of  testimony,  and  that  the  arrest  was  made  without  malice,  in 
good  faith,  and  upon  reasonable  grounds,  is  to  my  mind  incontroverti- 
ble. 

The  appeal  appears  to  me  to  have  been  taken  upon  a  misapprehension 
of  the  construction  and  effect  of  the  statutes  conferring  power  on  the 
policeman.  I  think  the  power  perfectly  clear,  and  I  notice  that  the  rules 
and  regulations  of  the  board  of  police  are  in  conformity  therewith; 
and  it  is  made  the  duty  of  the  officer  to  take  the  arrested  person  imme- 
diately before  the  police  court,  or,  if  made  at  night  or  when  the  courts 
are  not  open,  immediately  to  the  station  house,  where  the  officer  on 
duty  is  required  to  examine  whether  there  is  reasonable  ground  for 
the  complaint,  and,  if  so,  to  cause  the  party  to  be  taken  before  the 
court  the  next  morning.  Under  such  a  system,  innocent  parties  may 
sometimes  be  subjected  to  inconvenience  and  mortification;  but  any 


252  LAW  OF  TORTS. 

more  lax  rules  would  be  greatly  dangerous  to  the  peace  of  the  com- 
munity, and  make  the  escape  of  criminals  frequent  and  easy.     The 
judgment  should  be  affirmed.     All  the  judges  concurring. 
Judgment  affirmed. 

(Leading  cases  as  to  the  right  of  a  private  person  to  arrest  for  felony  with- 
out a  warrant  are  Reuck  v.  McGregor,  32  N.  J.  Law,  70 ;  Spencer  v.  Anness, 
Id.  100;  Mahaffey  v.  Byers,  151  Pa.  92,  25  Atl.  93;  Malinieini  v.  Groiilund, 
92  Mich.  222,  52  N.  W.  627,  31  Am.  St.  Rep.  576 ;  Morley  v.  Chase,  143  Mass. 
396,  9  N.  E.  767 ;  Gamier  v.  Squires,  62  Kan.  321,  62  Pac.  1005 ;  Howard  v. 
Clarke,  L.  R.  20  Q.  B.  D.  558;  Lister  v.  Ferryman,  L.  R.  4  E.  &  I.  App.  521. 
If  a  private  person  communicates  to  an  officer  circumstances  of  suspicion,  and 
leaves  it  to  the  officer  to  act  on  his  own  judgment  as  to  making  an  arrest, 
he  will  not  be  liable  if  the  officer  does  arrest  the  accused  person,  even  if  the 
arrest  be  unlawful ;  but  if  the  accuser  directs  the  officer  to  take  the  alleged 
offender  into  custody  he  is  liable  for  false  imprisonment,  unless  he  can  justify 
by  showing  probable  cause.  Hopkins  v.  Crowe,  7  C.  &  P.  373 ;  Veneman  v. 
Jones,  118  Ind.  41,  20  N.  E.  644,  10  Am.  St.  Rep.  100 ;  Miller  v.  Fano,  134  Cal. 
103,  66  Pac.  183.) 


(96  Mich.  249,  55  N.  W.  843.) 

WHITE  v.  McQUEEN  (in  part). 

(Supreme  Court  of  Michigan.    June  30,  1893.) 

1.  FALSE  IMPRISONMENT — ABBEST  BY  OFFICER  WITHOUT  WARRANT  FOB  FELONY 

— PROBABLE  CAUSE. 

In  an  action  against  an  officer  for  false  imprisonment,  for  making  an 
arrest  without  a  warrant  for  felony,  it  is  a  defense  that  defendant  had 
reasonable  grounds  to  believe  that  a  felony  had  been  committed  and  that 
plaintiff  was  guilty  thereof,  and  consequently  arrested  him.  Where  the 
facts  are  admitted,  probable  cause  is  a  question  of  law  for  the  court 

2.  SAKE. 

In  an  action  for  false  Imprisonment,  It  appeared  that  a  newspaper  ar- 
ticle stated  that  plaintiff  and  some  companions  boarded  a  street  car, 
when  drunk,  and  refused  to  pay  their  fare;  that  the  conductor  and 
motorman  attempted  to  put  them  off,  when  a  fight  ensued,  and  a  lady 
passenger  became  frightened,  jumped  from  the  car,  and  was  injured. 
Held,  that  there  was  nothing  in  the  article  to  justify  an  arrest  without  a 
warrant  on  the  ground  that  a  felony  had  been  committed  under  a  statute 
which  made  it  a  felony  willfully  and  maliciously  by  act  or  intimidation 
to  impede  or  obstruct  the  regular  operation  of  a  railroad ;  that  the  facts 
afforded  no  probable  cause  to  believe  that  such  a  felony  had  been  com- 
mitted; and  that  the  judge  should  have  instructed  the  jury  that  there 
was  no  probable  cause. 

Error  to  Circuit  Court,  Kent  County ;  Allen  C.  Adsit,  Judge. 
Action  by  Silas  White  against  John  McQueen  for  false  imprisonment. 
Judgment  for  defendant,  and  plaintiff  brings  error.     Reversed. 

GRANT,  J.     Defendant  is  the  sheriff  of  Kent  county.     He  caused 
the  arrest  of  plaintiff  August  2,  1891,  which  was  Sunday,  and  impris- 


FALSE   IMPRISONMENT.  253 

oned  him  in  the  county  jail  until  the  following  day,  when  he  was 
brought  before  a  justice  of  the  peace,  and  charged  with  being  disor- 
derly, under  an  ordinance  of  the  city  of  Grand  Rapids.  He  was  tried 
upon  August  4th,  and  acquitted.  Defendant  had  no  warrant  for  his 
arrest.  Plaintiff  then  instituted  this  suit  to  recover  damages  for  false 
imprisonment.  The  declaration  is  in  the  usual  form.  The  plea  was 
"not  guilty."  Defendant  claimed  to  have  arrested  plaintiff  upon  suspi- 
cion that  he  was  guilty  of  a  felony.  It  appears  from  the  evidence  that 
on  the  Saturday  evening  previous  an  altercation  had  occurred  upon  a 
street  car  between  the  conductor  and  two  motormen ;  that  during  the 
fight  a  lady  had  jumped  from  the  car,  and  was  reported  to  be  seriously 
injured;  and  that  no  arrests  were  made  *hat  night  of  any  of  the  per- 
sons engaged  in  the  fight.  The  defendant  testified  that  between  8  and 
9  o'clock  Sunday  morning  the  turnkey  of  the  jail  reported  to  him  that 
there  was  a  riot  on  East  Fulton  street  by  a  lot  of  colored  people,  and 
that  a  lady  was  killed  or  nearly  killed ;  that  some  one  had  telephoned 
that  there  had  been  a  row  and  a  fight  on  a  street  car,  and  that  this 
woman  had  received  serious  injuries  in  consequence  of  the  fight,  and 
thought  the  authorities  ought  to  take  these  people  in  charge.  Defend- 
ant then  went  to  the  office  of  the  street-railway  company,  and  saw  Mr. 
Chapman,  who  had  telephoned  to  the  jail  for  him.  Chapman  gave 
him  the  names  of  six  persons,  including  the  plaintiff,  who,  he  said,  had 
been  engaged  in  the  fight,  and  wanted  him  to  arrest  them.  Mr. 
Cb?pman  told  him  that  these  persons  had  undertaken  to  run  the  car; 
had  used  profane  language;  that  the  conductor  undertook  to  eject 
some  of  them  from  the  car ;  that  they  all  pitched  on  the  conductor,  or 
two  conductors,  got  one  of  them  down,  and  hammered  him;  that  this 
lady  had  gotten  off  of  the  car,  or  jumped  off  the  car,  in  some  way ;  that 
she  was  in  a  critical  condition,  and  presumed  she  would  die;  that  he, 
Chapman,  wanted  these  people  taken  that  day,  for  if  she  died  they 
would  skip  out,  and  there  would  be  trouble  in  getting  them.  On  the 
strength  of  this  information  defendant  sent  two  deputies  to  arrest  the 
plaintiff  and  the  others  who  were  reported  to  have  been  engaged  in 
the  affair.  Defendant  thought,  but  was  not  positive,  that  he  saw  an 
account  of  the  affair  in  one  of  the  Sunday  morning  papers.  Plaintiff 
was  a  coachman  for  Dr.  Barth.  He  was  found  by  the  officers  at  his 
customary  work  at  the  barn  about  I  o'clock  p.  m.,  and  promptly  told 
them  his  name,  whereupon  he  was  immediately  taken  to  jail.  The 
case  was  submitted  to  the  jury  upon  the  theory  that  if  the  defendant  had 
probable  cause  to  believe,  from  the  information  which  he  received,  that 
a  felony  had  been  committed  by  the  plaintiff,  he  was  justified  in  making 
the  arrest  without  a  warrant.  The  court  instructed  the  jury  that  assault 
with  intent  to  do  great  bodily  harm,  and  manslaughter,  were  felonies. 
But  the  crime  to  which  he  specifically  called  their  attention  was  obstruct- 
ing the  operations  and  business  of  the  street-railway  company,  under 
How.  St.  §§  9274,  9275.  Under  the  first  section  it  is  made  a  crime 


254  LAW  OF  TORTS. 

for  any  person  to  willfully  and  maliciously,  by  any  act,  or  by  means  of 
intimidation,  impede  or  obstruct  the  regular  operation  and  conduct  of 
the  business  of  any  railroad  company,  etc.  The  second  section  makes 
it  a  crime  for  two  or  more  persons  willfully  and  maliciously  to  combine, 
and  conspire  together  for  the  like  purpose.  The  punishment  provided 
by  the  first  section  may  be  imprisonment  in  the  state's  prison  for  a 
period  not  exceeding  one  year ;  and  under  the  second  section  for  a  like 
imprisonment  not  exceeding  two  years.  The  court  instructed  the 
jury  that  if  the  facts  conveyed  to  the  defendant  justified  him  in  be- 
lieving that  an  offense  under  this  statute  had  been  committed,  and  that 
the  plaintiff  was  guilty  thereof,  then  he  was  justified  in  making  the 
arrest. 

When  an  officer,  in  arresting  fugitives  from  justice,  and  those  whom 
he  honestly  believes  have  been  guilty  of  a  felony,  has  acted  in  good 
faith,  and  after  such  an  investigation  as  the  circumstances  permitted 
him  to  make,  he  will  be  protected  in  his  action,  and  will  be  relieved  from 
the  consequences  of  a  false  imprisonment.  This  is  required  for  the 
protection  of  society,  and  to  prevent  the  escape  of  criminals.  So  far 
as  appears  upon  this  record,  the  defendant  acted  mainly  upon  the  in- 
formation conveyed  to  him  by  Chapman.  If  he  read  the  newspaper 
article,  (and  the  judge  in  his  charge  assumed  that  he  did,)  there  was 
nothing  in  that  to  indicate  that  plaintiff  and  his  companions  had  been 
guilty  of  a  felony.  The  article  stated  that  plaintiff  and  his  companions 
were  very  drunk  when  they  boarded  the  car ;  that  they  refused  to  pay 
their  fare ;  that  they  used  vile  language,  which  annoyed  the  passengers  ; 
that  they  refused  to  get  off  when  asked ;  that  they  showed  fight  when 
the  conductor  proceeded  to  put  them  off;  that  the  motorman  came  to 
his  rescue,  and  with  his  crank  knocked  one  of  the  colored  men  from  the 
car;  that  the  conductor  ejected  the  other;  that  one  of  the  colored  men 
jumped  on  again;  that  he  was  bleeding  profusely,  and  using  vile  and 
filthy  language ;  that  when  he  refused  to  get  off  the  conductor  knocked 
him  from  the  car  with  a  rock ;  that  the  passengers  then  commenced  to 
jump  from  the  car;  and  that  among  those  who  jumped  was  a  lady, 
but  that  she  fortunately  fell  away  from  the  car,  and  escaped  death; 
and  that  the  names  of  the  colored  men  were  not  known  to  the  police, 
but  that  they  had  a  good  description  of  them,  and,  unless  they  left  the 
city,  they  would  probably  be  identified.  There  was  nothing  in  this 
statement  to  show  that  the  plaintiff  and  his  companions  had  been  guilty 
of  a  violation  of  the  statutes  above  quoted,  or  of  any  felony  whatever. 
There  was  therefore  nothing  in  it  to  justify  the  arrest  without  a  war- 
rant. When  the  facts  are  conceded,  probable  cause  is  a  question  of 
law,  which  the  court  must  determine.  Pol.  Torts,  192,  193 ;  Perry  v. 
Sulier,  92  Mich.  72,  52  N.  W.  801 ;  Huntington  v.  Gault,  81  Mich.  155, 
45  N.  W.  970.  Under  this  record  the  court  should  have  directed  the 
jury  that  there  was  no  probable  cause  for  the  belief  on  the  part  of  the 
defendant  that  plaintiff  had  been  guilty  of  a  felony.  For  these  rea- 


FALSE   IMPRISONMENT.  255 

sons  the  judgment  must  be  set  aside,  and  a  new  trial  ordered.     The 
other  justices  concurred. 

(Important  cases  to  the  same  effect  as  to  the  right  of  officers  to  arrest  with- 
out a  warrant  for  felony  are  McCarthy  v.  De  Armit  99  Pa.  63;  Van  v.  Pa- 
cific Coast  Co.  [C.  C.]  120  Fed.  699 ;  Kirk  v.  Garrett,  84  Md.  383,  35  Atl.  1089 ; 
Rohan  v.  Sawin,  5  Cush.  281 ;  Com.  v.  Carey,  12  Gush.  246 ;  Wade  v.  Chaffee, 
8  R.  I.  224,  5  Am.  Rep.  572;  State  v.  Underwood,  75  Mo.  231;  Cahill  v. 
People,  106  111.  621 ;  Miller  v.  Fano,  134  Cal.  103,  66  Pac.  183 ;  Neal  v.  Joyner, 
89  N.  C.  287 ;  Newman  v.  New  York,  L.  E.  &  W.  R.  Co.,  54  Hun,  335,  7  N.  Y. 
Supp.  560 ;  Snead  v.  Bonnoil,  166  N.  Y.  325,  59  N.  E.  899 ;  Hogg  v.  Ward,  3  H.  & 
N.  417.  The  burden  of  proving  "probable  cause"  for  the  arrest  [whether  it 
be  made  by  an  officer  or  by  a  private  person]  is  on  the  defendant  Jackson 
v.  Knowlton,  173  Mass.  94,  53  N.  E.  134;  Edger  v.  Burke,  96  Md.  715,  54 
Atl.  986 ;  McCarthy  v.  De  Armit,  99  Pa.  63.  When  the  facts  are  undisputed 
or  settled,  the  question  whether  there  was  probable  cause  is  one  of  law  for 
the  court,  and  not  of  fact  for  the  jury.  Filer  v.  Smith,  96  Mich.  347,  55  N. 
W.  999,  35  Am.  St.  Rep.  603;  Id.,  102  Mich.  98,  60  N.  W.  297;  McCarthy  v. 
De  Armit,  99  Pa.  63 ;  Burns  v.  Erben,  40  N.  Y.  463.  Or,  to  put  the  rule  other- 
wise: It  is  for  the  jury  to  find  the  facts  which  are  supposed  to  constitute 
probable  cause,  and  to  draw  their  conclusions  from  these  facts  under  the  in- 
structions of  the  court.  "It  is  wholly  immaterial  whether  the  suspicion  arises 
out  of  information  imparted  to  the  officer  by  some  one  else  or  whether  it  is 
founded  on  the  officer's  own  knowledge.  In  either  event,  what  amounts  to 
a  sufficient  ground  of  suspicion  to  justify  an  arrest  without  a  warrant  is  for 
the  court  and  not  for  the  jury."  Edger  v.  Burke,  96  Md.  715,  54  Atl.  986; 
cf.  Lister  v.  Ferryman,  L.  R.  4  E.  &  I.  App.  521. 

If  the  person  arrested  be  detained  longer  than  is  reasonably  necessary  be- 
fore being  taken  before  a  magistrate,  this  also  constitutes  false  imprisonment. 
Linnen  v.  Banfield,  114  Mich.  93,  72  N.  W.  1 ;  cf.  Leger  v.  Warren,  62  Ohio 
St.  500,  57  N.  E.  506,  51  L.  R.  A.  193,  78  Am.  St  Rep.  738 ;  Bath  v.  Metcalf, 
145  Mass.  274,  14  N.  E.  133,  1  Am.  St  Rep.  455.) 


B.  In  cases  of  breach  of  the  peace. 

(a)    By  officer. 

(40  Mich.  576.) 

QUINN  v.    HEISEL. 

(Supreme  Court  of  Michigan.    April  22,  1879.) 

FALSE  IMPBISONMENT— ABBEST  BY  OFFICES  WITHOUT  WABBANT  FOB  BBEACH 
OF  THE  PEACE. 

An  officer  may  arrest  without  a  warrant  for  a  breach  of  the  peace 
committed  in  his  presence,  but  not  for  a  past  offense,  not  a  felony,  upon 
information  or  suspicion  thereof.  Nor  will  a  threat  or  other  indication 
of  a  breach  of  the  peace  justify  an  officer  in  making  an  arrest,  unless 
the  facts  are  such  as  would  warrant  him  in  believing  an  arrest  necessary 
to  prevent  an  immediate  execution  thereof ;  and  this  without  reference 
to  any  past  similar  offense  of  which  the  person  may  haye  been  guilty 
before  the  arrival  of  the  officer. 


250  LAW  OF  TORTS. 

Error  to  Circuit  Court,  Kent  County. 

Action  of  trespass  brought  before  a  justice  of  the  peace  by  John  C. 
Heisel  against  John  Quinn  for  an  assault  and  battery.  Quinn  claimed 
that  he  was  a  policeman  of  the  city  of  Grand  Rapids,  and  gave  evidence 
tending  to  show  that  the  alleged  assault  consisted  in  forcibly  arresting 
Heisel,  under  an  ordinance  of  that  city,  for  disorderly  conduct;  there 
being  testimony  that  Heisel  used  profane  and  abusive  language  to  men 
who  were  laying  railway  tracks  in  front  of  his  house,  swearing  that 
he  would  kill  some  of  them,  and  approached  them  with  an  axe,  threat- 
ening to  cut  their  heads  off,  and  raised  the  axe  as  if  about  to  strike 
one  of  them.  He  resisted  arrest,  and  in  the  struggle  was  thrown  down 
and  handcuffed.  At  the  trial  in  the  justice's  court  judgment  was  ren- 
dered for  defendant,  but,  on  appeal  to  the  circuit  court,  plaintiff  recov- 
ered judgment.  Defendant  brought  error  to  review  the  judgment  of 
the  circuit  court 

MARSTON,  J.  A  careful  examination  of  the  record  fails  to  show 
that  plaintiff  in  error  has  any  cause  of  complaint.  The  court  certainly 
charged  the  jury  as  to  the  right  of  an  officer  to  make  arrests  without 
warrant  for  breaches  of  the  peace,  as  favorably  as  common-law  rules 
would  warrant,  and  we  are  not  at  present  prepared  to  say  that  an  ordi- 
nance of  the  city  of  Grand  Rapids  could  authorize  arrests  without  pro- 
cess in  cases  not  justified  by  common-law  principles.  The  evidence  on 
the  part  of  the  plaintiff  tended  to  show  that  at  the  time  of  the  arrest 
there  was  no  disturbance,  either  actual  or  threatened,  while  that  on 
the  part  of  defendant  tended  to  show,  not  merely  a  reasonable  and 
probable  apprehension  of  a  violation  of  the  ordinance,  but  an  actual 
disturbance,  and  the  jury  was  charged  that  under  such  circumstances, 
if  a  disturbance  was  found  to  exist,  defendant  was  justified.  The  court 
was  requested  to  charge  that,  if  there  had  been  a  breach  of  the  peace 
before  defendant  arrived,  and  plaintiff  was  about  to  renew  his  dis- 
orderly conduct,  and  continue  the  said  breach  in  presence  of  the  officer, 
then  defendant  would  be  justified  in  arresting  him,  even  though  the 
disturbance  had  temporarily  ceased,  before  defendant  came  on  the 
ground;  also  if  the  jury  found,  as  a  matter  of  fact,  that  plaintiff  had 
been  guilty  of  a  breach  of  the  peace  before  defendant  came  where  he 
was,  and  defendant  knew  the  fact,  and  had  reasonable  and  probable 
cause  to  believe  plaintiff  was  about  to  renew  his  offense,  then  he  was 
justified  in  arresting;  also  that  if  the  officer  received  information  from 
the  by-standers  that  there  had  been  a  tumult,  and  that  plaintiff  was  the 
cause  of  it,  of  which  fact  plaintiff  was  afterwards  found  guilty,  and 
plaintiff,  in  presence  of  defendant,  made  use  of  language  indicating 
an  intention  on  his  part  to  continue  the  disturbance,  then  defendant 
had  a  right  to  arrest  without  process.  These  requests  were  refused, 
and,  under  the  facts  in  the  case,  we  think  properly. 

There  are  many  loose  general  statements  in  the  books  as  to  the  right 


FALSE   IMPRISONMENT.  257 

of  officers  to  make  arrests  without  warrant.  That  they  have  a  right 
to  arrest  for  breaches  of  the  peace  committed  in  their  presence  is 
conceded  by  all.  It  is  equally  clear  that  they  cannot  arrest  for  a  past 
offense,  not  a  felony,  upon  information  or  suspicion  thereof,  although 
expressions  may  be  found  which  would  seem  to  assume  such  power. 
How  far  or  when  they  may  interfere  by  an  arrest  to  prevent  a  threat- 
ened breach  of  the  peace  is  not  equally  clear.  We  are  of  opinion  that 
a  threat  or  other  indication  of  a  breach  of  the  peace  will  not  justify 
an  officer  in  making  an  arrest,  unless  the  facts  are  such  as  would  war- 
rant the  officer  in  believing  an  arrest  necessary  to  prevent  an  immedi- 
ate execution  thereof,  as  where  a  threat  is  made,  coupled  with  some 
overt  act  in  attempted  execution  thereof.  In  such  cases  the  officer 
need  not  wait  until  the  offense  is  actually  committed.  To  justify  such 
arrest  the  party  must  have  gone  so  far  in.  the  commission  of  an  of- 
fense that  proceedings  might  thereafter  be  instituted  against  him  there- 
for, and  this  without  reference  to  any  past  similar  offense  of  which  the 
person  may  have  been  guilty  before  the  arrival  of  the  officer.  The 
object  of  permitting  an  arrest,  under  such  circumstances,  is  to  prevent 
a  breach  of  the  peace,  where  the  facts  show  danger  of  its  being  imme- 
diately committed. 

A  reference  to  some  of  the  authorities  may  not  be  inappropriate.  In 
Reg.  v.  Mabel,  9  Car.  &  P.  474,  the  jury  were  charged  that,  under  the 
circumstances  stated  by  the  policemen,  they  had  no  authority  to  lay 
hold  of  the  defendant,  unless  they  were  satisfied  that  a  breach  of  the 
peace  was  likely  to  be  committed  by  the  defendant  on  the  person  in  the 
parlor.  In  Timothy  v.  Simpson,  I  Cromp.,  M.  &  R.  757,  the  plea  justi- 
fying the  imprisonment  alleged  that  an  affray  had  been  committed,  and 
it  appeared  that  there  was  danger  of  its  immediate  renewal.  In  Grant 
v.  Moser,  5  Man.  &  G.  123,  it  was  said  there  should  be  a  direct  allega- 
tion either  of  a  breach  of  the  peace  committing  at  the  time,  or  that  a 
breach  had  been  committed,  and  that  there  was  reasonable  ground  for 
%  apprehending  its  renewal.  In  Baynes  v.  Brewster,  2  Q.  B.  384,  a  plea 
to  a  declaration  for  false  imprisonment  was  held  bad  which  showed  that 
the  violent  and  illegal  conduct  was  over,  and  it  was  not  stated,  nor  did 
it  appear,  that  it  would  have  been  repeated  if  the  apprehension  had  not 
taken  place.  In  this  case  Williams,  J.,  said:  "It  is  not  a  question, 
in  this  place,  how  far  a  constable  is  justified  in  interfering  where  an 
affray  is  going  on  in  his  presence ;  but  no  principle  is  more  generally 
assumed  than  that  a  warrant  is  necessary  to  entitle  him  to  interfere  after 
the  affray  is  over.  It  is  otherwise  where  the  facts  show  that  the  affray 
is  practically  going  on.  That  is  on  account  of  the  obvious  distinction, 
as  to  public  danger,  between  a  riot  still  raging  and  one  no  longer  exist- 
ing." Wightman,  J.,  in  speaking  of  the  right  to  arrest  during  the 
affray,  and  while  there  is  a  disposition  shown  to  resist  it,  quotes  from 
Timothy  v.  Simpson  as  follows:  "Both  cases  fall  within  the  same 
principle,  which  is  that,  for  the  sake  of  the  preservation  of  the  peace) 
CHASE  (2o  ED.) — 17 


258  LAW  OF  TORTS. 

any  individual  who  sees  it  broken  may  restrain  the  liberty  of  him  whom 
he  sees  breaking  it,  so  long  as  his  conduct  shows  that  the  public  peace 
is  likely  to  be  endangered  by  his  acts."  In  Wheeler  v.  Whiting,  9 
Car.  &  P.  262,  Patteson,  J.,  said:  "The  defendant  pleads  that  the 
plaintiff  was  making  a  disturbance  in  the  house,  and  ready  and  desirous 
to  commit  a  breach  of  the  peace;  whereupon  he  gave  him  in  charge 
to  the  policeman,  to  be  dealt  with  according  to  law.  The  policeman, 
however,  was  not  justified  in  taking  him,  unless  he  saw  some  breach  of 
the  peace  committed.  On  a  charge  of  felony  it  would  be  different;" 
and  the  learned  justice  doubted  whether  a  plea  which  stated  that  the 
plaintiff  was  intending  to  commit  a  breach  of  the  peace  was  good.  In 
Howell  v.  Jackson,  6  Car.  &  P.  723,  Parke,  B.,  distinctly  and  clearly  in- 
structed the  jury  that  to  make  out  the  defense  they  must  be  satisfied 
that  plaintiff  had  committed  a  breach  of  the  peace,  and  that  the  watch- 
man saw  him  do  so.  In  Knot  v.  Gay,  i  Root,  66,  it  was  said  an  arrest 
might  be  made  to  prevent  a  breach  of  the  peace  which  was  about  to 
take  place.  In  State  v.  Brown,  5  Har.  (Del.)  507,  it  was  said:  "A 
peace-officer,  such  as  a  constable  or  sheriff,  has  the  right  to  arrest,  even 
without  warrant,  a  person  concerned  in  a  breach  of  the  peace,  or  other 
crime,  or  when  he  has  reasonable  ground  to  suspect  the  party  of  such 
offense."  Clearly  this  last  clause  does  not  state  the  law  correctly  in 
not  limiting  the  right  to  cases  of  felony.  In  McCullough  v.  Com.,  67 
Pa.  32,  it  was  said:  "A  constable  may  justify  an  arrest  for  a  reason- 
able cause  of  suspicion  alone;"  citing  in  support  Russell  v.  Shuster,  8 
Watts  &  S.  309,  which  was  a  case  of  suspicion  of  felony.  In  Com.  v. 
Carey,  12  Cush.  252,  Shaw,  C.  J.,  said  "that  a  constable  or  other  peace- 
officer  could  not  arrest  one  without  a  warrant,  for  a  crime  proved  or 
suspected,  if  such  crime  were  not  an  offense  amounting  in  law  to 
felony."  Other  cases  might  be  referred  to.  There  is  little  danger  of 
being  misled  by  the  cases  in  which  it  is  held  an  officer  may  make  ar- 
rests to  prevent  a  threatened  breach  of  the  peace.  The  interposition  in 
the  case  of  merely  threatened  violence  is  not  for  the  purpose  of  an  ar- 
rest, in  the  ordinary  sense,  but  as  a  peace-officer,  to  prevent  a  disturb- 
ance or  breach  of  the  peace,  under  a  present  menace  of  violence.  The 
judgment  must  be  affirmed,  with  costs.  The  other  justices  concurred. 

(Leading  authorities  are  State  v.  Lewis.  50  Ohio  St.  179,  33  N.  E.  405,  10 
L.  R.  A.  449 ;  McLennon  v.  Richardson.  15  Gray,  74,  77  Am.  Dec.  353 ;  Scotl 
v.  Eldridge,  154  Mass.  25,  27  N.  E.  677,  12  L.  R.  A.  379;  People  v.  Johnson. 
80  Mich.  175,  48  N.  W.  870,  13  L.  R.  A.  163,  24  Am.  St.  Rep.  116;  Fleetwood 
v.  Com.,  80  Ky.  1 ;  Wahl  v.  Walton,  30  Minn.  506,  16  N.  W.  397.  The  Legis- 
lature may  authorize  an  arrest  without  warrant  for  other  misdemeanors  than 
breach  of  the  peace,  committed  in  the  presence  or  view  of  the  officer,  and  this 
has  been  done  in  many  states.  Burroughs  v.  Eastman,  101  Mich.  419,  59  N. 
W.  817,  24  L.  R.  A.  859,  45  Am.  St.  Rep.  419 ;  O'Connor  v.  Bucklin,  59  N.  H. 
589;  Hennessy  v.  Connolly,  13  Hun,  173;  Tobin  v.  Bell,  73  App.  Div.  41,  76 
N.  Y.  Supp.  425;  Ballard  v.  State,  43  Ohio  St.  340,  1  N.  E.  76;  Pluunner  v. 
State,  135  Ind.  308,  34  N.  E.  968 ;  cf.  Com.  v.  Wright,  158  Mass.  149,  33  N.  E. 
82,  19  L.  R.  A.  206,  35  Am.  St  Rep.  475.) 


FALSE   IMPRISONMENT.  259 

(b)   By  a  private  person* 
(11  Johns.  486.) 

PHILLIPS  v.  TRULL. 
(Supreme  Court  of  New  York.    October,  1814.) 

FALSE  IMPRISONMENT— ARREST  WITHOUT  WARRANT — BREACH  OF  THE  PEACE. 

In  an  action  for  false  imprisonment,  it  is  no  justification  that  plaintiff, 
having  been  engaged  in  an  affray,  was  taken  into  custody  by  defendant, 
a  private  person,  after  the  affray  was  ended,  and  held  in  custody  until 
he  could  be  brought  before  a  magistrate,  when  defendant  did  not  act  under 
a  warrant 

Demurrer  to  plea. 

Action  for  assault  and  battery  and  false  imprisonment.  The  declara- 
tion contained  three  counts,  of  which  the  first  and  second  charged  an 
assault  and  battery  and  an  imprisonment  for  six  days,  and  the  third 
charged  only  an  assault  and  battery.  Defendant  pleaded  (i)  not  guilty ; 
and,  (2)  as  to  the  assaulting,  etc.,  and  imprisoning  the  plaintiff,  and  de- 
taining him  in  prison  for  the  space  of  10  hours,  part  of  the  time  in  the 
first  count  of  the  declaration  mentioned,  that  the  plaintiff  and  three 
other  persons,  being  in  a  house  occupied  by  one  Fitch,  made  a  great 
noise,  affray,  disturbance,  and  riot  in  the  said  house,  in  breach  of  the 
peace;  and  because  the  defendant,  being  a  laborer  and  lodger  in  the 
said  house,  at  the  request  of  th«  said  Fitch,  in  attempting  to  keep  the 
peace  and  stop  the  noise,  etc.,  was  assaulted  by  the  plaintiff,  he  gave 
charge  of  the  said  plaintiff  to  one  Curtis  to  take  him  into  his  custody, 
and  keep  him  until  he  could  be  carried  before  a  justice  of  the  peace, 
to  answer  for  the  said  breaches  of  the  peace ;  and  that,  at  the  request  • 
and  by  the  order  of  the  defendant,  the  said  Curtis  gently  laid  his  hands 
on  the  said  plaintiff,  and  took  him  into  custody  for  the  purposes  afore- 
said ;  but  because  it  was  midnight,  and  the  plaintiff  could  not  be  imme- 
diately carried  before  a  justice  of  the  peace,  he  was  necessarily  detained 
in  the  custody  of  Curtis  until  the  next  day,  and  that  he  was,  as  soon  as 
he  conveniently  could  be,  carried  before  a  justice;  and  the  defendant 
avers  that,  by  means  of  the  premises,  the  plaintiff  was  necessarily  im- 
prisoned for  the  space  of  10  hours,  part  of  the  said  time,  which  is  the 
same,  etc.  To  this  second  plea  the  plaintiff  'demurred  specially,  be- 
cause (i)  it  does  not  answer  the  first  count  of  the  declaration;  (2)  that 
it  is  no  justification  or  bar  to  the  action ;  (3)  that  it  is  double  and  argu- 
mentative, and  in  other  respects  uncertain,  informal,  and  insufficient. 

PLATT,  J.  All  persons  whatever,  who  are  present  when  a  felony 
is  committed,  or  a  dangerous  wound  is  given,  are  bound  to  apprehend 
the  offenders.  3  Hawk.  P.  C.  157,  "Arrest,"  s.  i.  So  any  person 
whatever,  if  an  affray  be  made,  to  the  breach  of  the  peace,  may,  without 


260  LAW  OF  TORTS. 

a  warrant  from  a  magistrate,  restrain  any  of  the  offenders,  in  order  to 
preserve  the  peace ;  but,  after  there  is  an  end  of  the  affray,  they  cannot 
be  arrested  without  a  warrant.  2  Inst.  52 ;  Burns,  J.  P.  92.  Hawkins 
(3  Hawk.  P.  C.  174,  b.  2,  s.  20)  says :  "It  seems  clear  that,  regularly, 
no  private  person  can,  of  his  own  authority,  arrest  another  for  a  bare 
breach  of  the  peace,  after  it  is  over."  We  are  of  opinion  that  the  spe- 
cial plea  of  justification  is  bad,  and  the  plaintiff  is  therefore  entitled  to 
judgment  on  the  demurrer. 
Judgment  for  plaintiff. 

(These  statements  of  early  English  law  In  Hawkins*  Pleas  of  the  Crown 
have  been  modified  to  some  extent  by  modern  English  decisions.  Thus,  in 
Timothy  v.  Simpson,  1  Cr.  M.  &  R.  757,  this  summary  of  the  law  is  given :  "It 
is  clear,  therefore,  that  any  person  present  may  arrest  the  affrayer  at  the 
moment  of  the  affray,  and  detain  him  till  his  passion  has  cooled,  and  his  de- 
sire to  break  the  peace  has  ceased,  and  then  deliver  him  to  a  peace  officer. 
And  If  this  be  so,  what  reason  can  there  be  why  he  may  not  arrest  an  af- 
frayer after  the  actual  violence  is  over,  but  whilst  he  shows  a  disposition  to 
renew  it,  by  persisting  in  remaining  on  the  spot  where  he  has  committed  it. 
Both  cases  fall  within  the  same  principle,  which  is  that,  for  the  sake  of  the 
preservation  of  the  peace,  any  individual  who  sees  it  broken  may  restrain 
the  liberty  of  him  whom  he  sees  breaking  it,  so  long  as  his  conduct  shows 
that  the  public  peace  is  likely  to  be  endangered  by  his  acts.  In  truth,  whilst 
those  are  assembled  together  who  have  committed  acts  of  violence,  and  the 
danger  of  their  renewal  continues,  the  affray  itself  may  6e  said  to  continue." 
This  view  has  been  upheld  by  the  House  of  Lords,  holding  that  a  private 
person  is  justified  in  arresting,  or  giving  in  charge  of  a  policeman,  without 
a  warrant,  a  party  who  has  been  engaged  in  an  affray,  ichile  the  affray  is 
still  continuing,  or  there  is  reasonable  ground  for  apprehending  that  he  in- 
tends to  renew  it.  Price  v.  Seeley,  10  Cl.  &  F.  28.  To  the  same  effect  is  Bait. 
A  O.  R.  Co.  v.  Cain,  81  Md.  87,  31  Atl.  801,  28  L.  R.  A.  688.  See  also  Winn 
v.  Hobson,  54  N.  Y.  Super.  Ct.  330;  People  v.  Adler,  3  Parker,  Cr.  R.  249; 
In  re  Powers,  25  Vt  261 ;  State  v.  Campbell,  107  N.  C.  948,  12  S.  E.  441 ;  Mc- 
Garrahan  v.  Lavers,  15  R.  I.  302,  3  Atl.  592.  These  rules  apply  to  officers  and 
private  persons  alike.  Id.  They  are  sometimes  changed  by  statute.  Thus, 
in  New  York  an  officer  or  a  private  person  may  arrest  for  any  crime  com- 
mitted or  attempted  in  his  presence.  Code  Or.  Proc.  §§  177,  183;  Tobin  v. 
Bell,  73  App.  Div.  41,  76  N.  Y.  Supp.  425.) 


MALICIOUS  PROSECUTION.  261 


MALICIOUS  PROSECUTION. 


Elements  of  action. 

(48  Barb.   30.) 

MILLER  v.  MILLIGAN  (in  part). 
(Supreme  Court  of  New  York.     March  5,  1866.) 

1.  MALICIOUS  PBOSECUTION — GROUNDS  OF  ACTION — BURDEN  OF  PROOF. 

The  essential  elements  of  an  action  for  malicious  prosecution  consist 
of  a  previous  unfounded  prosecution  of  the  plaintiff  by  the  defendant, 
commenced  without  probable  cause,  conducted  with  malice,  and  terminat- 
ing favorably  to  the  party  prosecuted.  The  burden  of  proof  rests  on  the 
plaintiff  to  establish  each  of  these  several  propositions  or  fail  in  his  ac- 
tion. 

2.  SAME— MALICE — PROBABLE  CAUSE. 

To  sustain  the  action,  want  of  probable  cause  for  the  former  suit  and 
malice  must  concur,  arid  the  former  cannot  be  inferred  from  any  degree 
of  malice  which  may  be  shown. 

8.  SAME— WHEN  NONSUIT  GRANTED. 

Where  plaintiff  fails  to  show  that  defendant  was  the  real  prosecutor 
in  the  former  suit,  or,  if  so,  that  he  was  without  evidence  or  circum- 
stances justifying  a  reasonable  suspicion  of  the  truth  of  the  charge,  the 
complaint  may  properly  be  dismissed. 

Exceptions  from  Circuit  Court. 

Action  for  malicious  prosecution,  on  the  ground  that  a  former  pro- 
ceeding against  plaintiff,  in  a  district  court  of  the  United  States,  in 
which  he  was  arrested  and  indicted  for  having  induced  a  prisoner,  in 
defendant's  custody  as  a  deserter  from  the  army,  to  escape,  and  was 
tried  and  acquitted  of  the  charge,  was  instigated  by  defendant  mali- 
ciously, and  was  without  probable  cause.  At  the  trial  the  court  dis- 
missed the  plaintiff's  complaint,  and  ordered  his  exceptions  to  be  heard 
in  the  first  instance  at  the  general  terrru 

Argued  before  MILLER,  INGALLS,  and  HOGEBOOM,  JJ. 

HOGEBOOM,  J.  The  essential  elements  of  this  action  are  well 
understood.  They  consist  of  a  previous  unfounded  prosecution  of 
the  plaintiff  by  the  defendant,  commenced  without  probable  cause, 
conducted  with  malice,  and  terminating  favorably  to  the  party  prose- 
cuted. Vanderbilt  v.  Mathis,  5  Duer,  304;  Foshay  v.  Ferguson,  2 
Denio,  617;  Besson  v.  Southard,  10  N.  Y.  236;  McKown  v.  Hunter, 
30  N.  Y.  627.  In  regard  to  these,  the  burden  of  proof  rests  on  the 
plaintiff,  and  he  must  establish  each  of  these  several  propositions  or 
fail  in  his  action.  It  is  often  said,  in  a  general  way,  that  malice  and 


262  LAW  OF  TORTS. 

the  want  of  probable  cause  are  the  ingredients  of  the  cause  of  action ; 
but  it  is  plain  that  the  other  ingredients  are  implied  or  understood  to 
exist.  Vanduzor  v.  Linderman,  10  Johns.  106 ;  McCormick  v.  Sisson, 
7  Cow.  715;  Bulkeley  v.  Smith,  2.  Duer,  261 ;  Von  Latham  v.  Rowan, 
17  Abb.  Prac.  238,  248;  McKown  v.  Hunter,  30  N.  Y.  627.  Thus, 
in  general,  very  little  is  said  about  the  defendant  having  been  the  pros- 
ecutor, because  the  question  ordinarily  is  not  the  subject  of  dispute, 
and  because,  generally,  the  defendant  was  the  adverse  party  in  the  action 
or  proceeding  which  constituted  the  gravamen  of  the  action  for  mali- 
cious prosecution.  But  it  plainly  lies  at  the  very  foundation  of  this 
action  that  the  plaintiff  must  show  that  the  defendant,  and  not  some- 
body else,  has  prosecuted  him, — has  been  the  real  party,  in  fact,  who 
has  set  on  foot  and  conducted  the  proceedings  against  him.  This  pros- 
ecution may  have  been  in  the  form  of  a  civil  action,  or  of  a  criminal 
proceeding;  and,  when  not  conducted  in  the  name  of  the  offending 
party,  it  would  doubtless  suffice  to  prove  that  he  was  the  real  party, — 
the  mover  and  manager  and  controller  of  the  prosecution.  If  he  were 
the  mere  clerk  or  agent  of  others,  or  a  mere  witness  in  the  transac- 
tion, he  would  not  hold  the  character  nor  be  liable  to  the  penalties  of  a 
malicious  prosecutor.  So  the  plaintiff  must  aver  and  prove  that  the 
prosecution  claimed  to  be  malicious  is  terminated  in  his  favor.  Gorton 
v  De  Angelis,  6  Wend.  418;  Clark  v.  Cleveland,  6  Hill,  344;  Hall 
v  Fisher,  20  Barb.  441.  Proof  that  the  prosecution  complained  of 
was  instituted  through  actual  malice  is  not  enough  to  sustain  the  action. 
Foshay  v.  Ferguson,  2  Denio,  §17.  In  an  action  for  malicious  prose- 
cution, the  plaintiff  must  allege  and  prove  both  malice  and  a  want  of 
probable  cause  for  the  former  suit.  If  there  was  probable  cause,  the 
action  cannot  be  maintained,  even  though  the  prosecution  complained 
of  was  malicious.  Want  of  probable  cause  and  malice  must  concur, 
and  the  former  cannot  be  inferred  from  any  degree  of  malice  \\Jiich 
may  be  shown.  Besson  v.  Southard,  10  N.  Y.  236 ;  Bulkeley  v.  Smith, 
2  Duer,  261.  I  allude  to  these  familiar  rules,  not  for  the  purpose  of 
establishing  their  existence,  but  merely  to  bring  to  mind  how  strict 
and  exacting  the  courts  have  been  in  enforcing  them.  In  the  present 
case  I  was  of  opinion  at  the  trial  that,  in  two  at  least  of  the  particulars 
essential  to  constitute  the  cause  of  action,  there  was  a  lack  of  evidence 
to  justify  a  recovery,  and  I  am  still  of  the  same  opinion.  The  defend- 
ant has,  I  think,  shown  probable  cause  for  the  prosecution  if  he  is  its 
author,  and  the  plaintiff  (which  is  the  real  question)  has  not  shown  the 
want  of  probable  cause  for  the  charge.  On  both  of  the  grounds,  the 
absence  of  proof  to  show  that  the  defendant  was  the  real  prosecutor, 
and,  if  so,  that  he  was  without  evidence  or  circumstances  justifying 
a  reasonable  suspicion  of  the  truth  of  the  charge,  I  am  of  opinion  that 
the  plaintiff  was  properly  nonsuited,  and  had  no  legal  right  to  ask  a 
submission  of  the  facts  to  the  jury.  F  think  no  legal  error  was  com- 


MALICIOUS  PROSECUTION.  263 

mitted  at  the  circuit,  and  that  a  new  trial  should  be  denied,  and  the 
defendant  have  judgment. 

MILLER,  J.,  concurred.    INGALLS,  J.,  dissented. 

(See  also  as  to  the  elements  of  this  action,  Crescent  Live  Stock  Co.  T. 
Butchers'  Co.,  120  U.  S.  141,  7  Sup.  Ct  472,  30  L.  Ed.  614 ;  Magowan  v.  Rickey, 
(54  N.  J.  Law,  402,  45  Atl.  804;  Campbell  v.  Baltimore  &  O.  R.  Co.,  97  Md.  341, 
55  Atl.  532;  Ripley  v.  McBarron,  125  Mass.  272;  Ruth  v.  St  Louis  Transit  Co., 
98  Mo.  App.  1,  71  S.  W.  1055;  Carbondale  Co.  v.  Burdick  [Kan.]  72  Pac.  781 
[malicious  civil  action].  The  burden  of  proof  rests  on  the  plaintiff  to  prove 
all  these  elements,  unless  defendant  so  pleads  as  to  admit  them  or  some  of 
them.  Abrath  v.  Northeastern  R.  Co.,  11  Q.  B.  D.  440,  affirmed  L.  R.  11  App. 
Cas.  247;  Anderson  v.  How,  116  N.  Y.  336,  22  N.  E.  695;  Good  v.  French,  115 
Mass.  201.  An  action  for  malicious  prosecution  is  maintainable  against  a 
corporation.  Comford  v.  Carlton  Bk.  [1899]  1  Q.  B.  392,  [1900]  1  Q.  B.  22: 
Williams  v.  Holmes,  Booth  &  Haydens,  142  N.  Y.  492,  37  N.  E.  480;  Ruth  v.  St. 
Louis  Transit  Co.,  supra. 

When  a  person,  believing  that  a  crime  has  been  committed,  sends  for  an  of- 
ficer and  tells  him  all  he  knows  about  the  innocence  or  guilt  of  the  person  sus- 
pected, and  leaves  it  to  the  officer  to  act  on  his  own  judgment  as  to  whether 
there  shall  be  a  criminal  prosecution,  and  does  no  more,  he  is  not  liable  in  an 
action  for  malicious  prosecution,  in  case  the  officer  comes  to  the  wrong  conclu- 
sion and  prosecutes  when  he  ought  not  to  do  so.  Burnham  T.  Collateral  Loan 
Co.,  179  Mass.  268,  60  N.  E.  617.) 


Difference   between  an  action  for  false  imprisonment  and 
one  for  malicious  prosecution. 

(18  R.  I.  84,  25  Atl.  694.) 

HOBBS  v.  RAY. 
(Supreme  Court  of  Rhode  Island.    November  26,  1892.) 

FALSE  IMPRISONMENT — No  ACTION  FOB  ABREST  UNDER  LAWFUL,  PROCESS. 

An  action  for  false  imprisonment  will  not  lie  for  an  arrest  made  under 
lawful  process,  though  wrongfully  obtained,  the  remedy  being  an  action 
for  malicious  prosecution.  The  gravamen  of  the  offense  of  false  imprison- 
ment is  the  unlawful  detention  of  another  without  his  consent,  and  malice 
is  not  an  essential  element  thereof;  while,  in  an  action  for  malicious 
prosecution,  the  essential  elements  are  malice  and  want  of  probable  cause 
in  the  proceeding  complained  of. 

Trespass  on  the  case  by  Lemuel  R.  Hobbs  against  Frederick  A.  Ray 
for  false  imprisonment.  On  demurrer  to  the  declaration,  and  also  on 
demurrer  to  a  plea  in  abatement.  Demurrer  to  declaration  sustained, 
and  plea  in  abatement  overruled. 

PER  CURIAM.  We  think  the  defendant's  demurrer  to  the  plain- 
tiff's declaration  should  be  sustained.  The  facts  set  out  in  the  writ 


264  LAW  OF  TORTS. 

and  declaration  show  a  case  for  malicious  prosecution,  and  not  for 
false  imprisonment;  and  these  actions  are  quite  distinct  and  different 
from  each  other.  An  action  of  trespass  for  false  imprisonment  lies 
for  an  arrest,  or  some  other  similar  act  of  the  defendant,  "which,"  as 
is  said,  "upon  the  stating  of  it,  is  manifestly  illegal ;"  while  malicious 
prosecution,  on  the  contrary,  lies  for  a  prosecution  which,  upon  the 
stating  of  it,  is  manifestly  legal.  Johnstone  v.  Sutton,  I  Term  R.  510, 
544.  The  declaration  in  the  case  at  bar  shows  that  the  arrest  com- 
plained of  was  made  under  lawful  process,  although  wrongfully  ob- 
tained. There  was,  therefore,  no  false  imprisonment,  the  imprison- 
ment being  by  lawful  authority.  Nebenzahl  v.  Townsend,  61  -How. 
Prac.  353,  356.  Imprisonment  caused  by  malicious  prosecution  is  not 
false,  unless  without  legal  process  or  extra  judicial.  Murphy  v.  Mar- 
tin, 58  Wis.  276,  16  N.  W.  603;  Colter  v.  Lower,  35  Ind.  285,  9  Am. 
Rep.  735,  7  Amer.  &  Eng.  Enc.  Law,  663,  664,  and  cases  cited.  See, 
also,  Turpen  v.  Remy,  3  Blackf.  210;  Mitchell  v.  State,  12  Ark.  50,  44 
Am.  Dec.  253,  and  cases  cited;  I  Chitty,  PI.  *I33,  *i6?.  The  grava- 
men of  the  offense  of  false  imprisonment  is  the  unlawful  detention  of 
another  without  his  consent,  and  malice  is  not  an  essential  element 
thereof;  while,  in  an  action  for  malicious  prosecution,  the  essential 
elements  are  malice  and  want  of  probable  cause  in  the  proceeding  com- 
plained of.  But  while,  for  the  reasons  above  given,  we  think  the  de- 
murrer should  be  sustained,  yet,  as  the  form  of  action  employed  by  the 
plaintiff  is  case,  which  is  the  proper  one  in  actions  for  malicious  prose- 
cution, we  see  no  sufficient  reason  for  sustaining  the  defendant's  plea 
in  abatement  to  the  writ  and  declaration.  The  demurrer  is  sustained, 
and  the  plea  in  abatement  is  overruled,  with  leave  to  the  plaintiff  to  file 
a  motion  to  amend  his  writ  and  declaration. 

(To  the  same  effect  are  Diehl  v.  Friester,  37  Ohio  St.  473;  Herzog  v.  Gra- 
ham, 9  Lea,  152;  Lisabelle  v.  Hubert,  23  R.  I.  456,  50  Atl.  837;  Gelzenleuchter 
v.  Niemeyer,  64  Wis.  316,  25  N.  W.  442,  54  Am.  Rep.  616;  Marks  y.  Townsend, 
97  N.  Y.  590.) 


Malice. 

(66  Me.  202.) 

PULLEN  v.  GLIDDEN. 

(Supreme  Judicial  Court  of  Maine.    February  19,  1877.) 

MAXICIOTJS  PBOSECUTION — MALICE. 

To  maintain  an  action  for  malicious  prosecution,  plaintiff  must  prove 
"malice  in  fact"  on  the  part  of  defendant,  as  distinguished  from  "malice 
in  law,"  which  is  inferred  by  law  from  the  commission  of  an  act,  wrong- 
ful in  itself,  without  justification  or  excuse.  But  the  plaintiff  is  not  re- 
quired to  prove  "express  malice"  in  the  popular  signification  of  the  term; 
as,  that  defendant  was  prompted  by  malevolence,  or  acted  from  motives 
of  ill  .will,  resentment,  or  hatred  towards  plaintiff.  It  is  sufficient  if  he 


MALICIOUS  PROSECUTION.  265 

prove  "malice  in  fact"  in  its  enlarged  legal  sense,  in  which  an  act  done 
willfully  and  purposely,  to  the  prejudice  and  injury  of  another,  which 
is  unlawful,  is,  as  against  that  person,  malicious. 

On  exceptions. 

Action  on  the  case  brought  by  Willard  W.  Pullen  against  James  S. 
Glidden  for  malicious  prosecution.  It  appeared  that  defendant  had 
made  a  complaint  before  a  magistrate  charging  plaintiff  with  forgery, 
and  that  plaintiff  was  arrested,  but,  upon  examination,  was  acquitted 
and  discharged  from  arrest.  Thereupon  he  brought  this  action.  At 
the  trial  the  jury  found  a  verdict  for  defendant.  Plaintiff  alleged  ex- 
ceptions. 

LIBBEY,  J.  This  is  an  action  for  malicious  prosecution.  The 
presiding  judge  instructed  the  jury  that  there  was  not  probable  cause 
for  the  prosecution.  Upon  the  question  of  malice  he  instructed  the 
jury  as  follows:  "In  regard  to  the  other  branch  of  the  case  necessary 
to  be  established  by  the  plaintiff,  it  is  that  there  was  malice;  that 
the  prosecution  was  malicious.  Now,  what  is  'malice'?  There  are 
several  kinds  of  malice;  but  the  two  kinds  of  malice  that  may  per- 
haps be  considered  in  this  charge  are  malice  in  law  and  malice  in  fact. 
Now,  what  is  malice  in  law?  Malice  in  law  is  such  malice  as  is  in- 
ferred from  the  commission  of  an  act  wrongful  in  itself,  without  jus- 
tification or  excuse.  This  is  not  the  kind  of  malice  required  in  this 
case.  The  malice  required  to  be  proved  in  this  case  is  malice  in  fact. 
Malice  in  fact  is  where  the  wrongful  act  was  committed  with  a  bad 
intent,  from  motives  of  ill  will,  resentment,  hatred,  a  desire  to  injure, 
or  the  like.  Did  such  kind  of  malice  exist  in  the  mind  of  the  defend- 
ant when  he  commenced  the  prosecution  in  question?  Did  he  do  it 
from  bad  intent,  from  evil  motives,  or  did  he  not?  Malice  may  be 
inferred  from  want  of  probable  cause,  or  it  may  be  inferred  and 
proved  by  other  evidence  in  the  case."  Again:  "If  you  should  find 
that  there  was  no  malice,  such  as  I  have  described,  the  plaintiff  could 
not  maintain  this  action." 

The  plaintiff  complains  that  this  instruction  required  the  jury  to 
find  malice  in  its  more  restricted  popular  sense,  when  proof  of  malice 
in  its  enlarged  legal  sense  was  all  that  the  law  requires.  To  main- 
tain his  case,  it  was  necessary  for  the  plaintiff  to  prove  malice  in  fact, 
as  distinguished  from  malice  in  law.  Malice  in  law  is  where  malice 
is  established  by  legal  presumption  from  proof  of  certain  facts,  as  in 
actions  for  libel,  where  the  law  presumes  malice  from  proof  of  the 
publication  of  the  libelous  matter.  Malice  in  fact  is  to  be  found  by  the 
jury  from  the  evidence  in  the  case.  They  may  infer  it  from  want  of 
probable  cause.  But  it  is  well  established  that  the  plaintiff  is  not  re- 
quired to  prove  "express  malice,"  in  the  popular  signification  of  the 
term,  as  that  defendant  was  prompted  by  malevolence,  or  acted  from 
motives  of  ill  will,  resentment,  or  hatred  towards  the  plaintiff.  It  is 


266  LAW  OF  TORTS. 

sufficient  if  he  prove  it  in  its  enlarged  legal  sense.  "In  a  legal  sense, 
any  act  done  willfully  and  purposely,  to  the  prejudice  and  injury  of 
another,  which  is  unlawful,  is,  as  against  that  person,  malicious." 
Com.  v.  Snelling,  15  Pick.  337.  "The  malice  necessary  to  be  shown, 
in  order  to  maintain  this  action,  is  not  necessarily  revenge,  or  other 
base  and  malignant  passion.  Whatever  is  done  willfully  and  pur- 
posely, if  it  be  at  the  same  time  wrong  and  unlawful,  and  that  known 
to  the  party,  is,  in  legal  contemplation,  malicious."  Wills  v.  Noyes,  12 
Pick.  324.  See,  also,  Page  v.  Gushing,  38  Me.  523;  Humphries  v. 
Parker,  52  Me.  502 ;  Mitchell  v.  Wall,  1 1 1  Mass.  492.  We  think,  from 
a  fair  construction  of  the  instruction  upon  this  point,  the  jury  must 
have  understood  that,  in  order  to  find  for  the  plaintiff,  they  must  find 
that  the  defendant,  in  prosecuting  the  plaintiff,  was  actuated  by  "ex- 
press malice,"  in  the  popular  sense  of  the  term.  In  this  respect  it  was 
erroneous. 

Exceptions  sustained. 

APPLETON,  C.  J.,  and  DICKERSON,  DANFORTH,  VIRGIN, 
and  PETERS,  JJ.,  concurred. 

(The  malice  involved  in  malicious  prosecution  is  called  variously  "malice  in 
fact,"  "actual  malice,"  "express  malice,"  etc.,  but  whatever  name  be  used  the 
meaning  is  always  the  same,  viz.,  actual  malice,  not  in  the  popular,  but  in  the 
legal,  sense  of  the  expression.  As  the  question  is  whether  malice  existed  "in 
fact"  when  the  prosecution  was  started,  it  is  for  the  jury  to  determine,  and 
not  for  the  court.  Cohn  v.  Saidel,  71  N.  H.  558,  53  Atl.  800;  Besson  v.  South- 
ard. 10  N.  Y.  236;  Wheeler  v.  Nesbitt,  24  How.  544,  16  L.  Ed.  765;  Small  v. 
McGovern,  117  Wis.  608,  94  N.  W.  651,  and  cases  infra.  An  admirable  defini- 
tion of  the  kind  of  malice  meant  is  the  following:  "Any  wrong  or  indirect 
motive.  Some  other  motive  than  a  desire  to  bring  to  justice  a  person  whom 
the  prosecutor  honestly  believes  to  be  guilty."  Brown  v.  Hawkes  [1891]  2  Q. 
B.  718;  Messman  v.  Ihlenfeldt,  89  Wis.  585,  62  N.  W.  522;  Vinal  v.  Core,  18 
W.  Va.  1;  Ripley  v.  McBarron,  125  Mass.  272.  It  is  "any  evil  or  unlawful 
purpose  as  distinguished  from  that  of  promoting  justice."  Metropolitan  Ins. 
Co.  v.  Miller  [Ky.]  71  S.  W.  921;  cf.  Campbell  v.  Bait  &  O.  R.  Co.,  97  Md.  341, 
55  Atl.  532.  Thus,  if  the  criminal  law  be  put  in  motion  for  the  purpose  of  col- 
lecting a  debt  or  compelling  the  delivery  of  property,  or  to  accomplish  some 
other  ulterior  and  unlawful  purpose,  it  is  begun  maliciously  as  much  as  though 
inspired  by  hatred  or  revenge.  Eggett  v.  Allen  [Wis.]  96  N.  W.  803.  Malice  may 
be  inferred  by  the  jury  from  evidence  showing  a  want  of  probable  cause,  but 
it  is  not  the' rule  of  law  that  it  must  be  so  inferred.  McClafferty  v.  Philp,  151 
Pa,  86,  24  Atl.  1042;  Small  v.  McGovern,  117  Wis.  608,  94  N.  W.  651;  Stubbs 
v.  Mulholland,  168  Mo.  47,  .67  S.  W.  650;  Stewart  v.  Sonneborn,  98  U.  S.  187, 
25  L.  Ed.  116.) 


MALICIOUS  PROSECUTION.  267 


Want  of  probable  cause. 

(2  Denio,  617.) 

FOSHAY  v.   FERGUSON. 

(Supreme  Court  of  New  York.    May,  1848.) 

1.  MALICIOUS  PROSECUTION— WANT  OF  PROBABLE  CAUSE. 

To  maintain  an  action  for  malicious  prosecution,  plaintiff  must  prove, 
not  only  express  malice  on  the  part  of  defendant,  but  absence  of  probable 
cause  for  the  prosecution. 

2.  SAME. 

Probable  cause  is  reasonable  ground  of  suspicion,  supported  by  circum- 
stances sufficient  to  warrant  a  cautious  man  in  the  belief  that  the  person 
accused  is  guilty  of  the  offense  charged. 

3.  SAME. 

The  next  day  after  plaintiff  had  passed  defendant's  farm  with  a  drove 
of  cattle,  it  was  discovered  that  some  of  defendant's  cattle  were  missing, 
and  defendant  was  informed  that  several  cattle  belonging  to  another  per- 
son had  been  driven  away,  and  that  he  had  pursued  the  drove,  and  re- 
gained them  from  plaintiff.  Defendant  also  pursued  and  overtook  the 
drove,  and  found  two  of  his  cattle  in  it,  which  he  charged  plaintiff  with 
stealing,  and  thereupon  plaintiff  paid  defendant  a  large  amount  in  cattle 
and  money  to  settle  the  matter.  Held,  that  there  was  probable  cause  for 
a  subsequent  charge,  made  by  defendant  against  plaintiff,  of  stealing  the 
two  cattle,  on  which  plaintiff  was  indicted;  and  that  defendant  was  not 
liable  to  an  action  therefor,  even  though  he  acted  maliciously,  and  al- 
though plaintiff  was  acquitted  on  trial  of  the  indictment. 

Motion  for  new  trial. 

Action  for  malicious  prosecution  in  charging  plaintiff  with  stealing 
cattle,  for  which  he  was  indicted,  but,  on  trial,  was  acquitted.  It  ap- 
peared that  several  of  defendant's  cattle,  kept  on  his  farm,  under  the 
charge  of  one  Lambert,  were  discovered  to  be  missing  the  next  day 
after  plaintiff  had  passed  the  farm  with  a  drove  of  cattle;  that  some 
of  the  missing  cattle  were  found  in  the  route  of  the  drove;  that  Lam- 
bert was  told  by  one  Gage  that  several  of  the  latter's  cattle  had  been 
driven  away,  and  that  he  had  pursued  and  overtaken  the  drove,  and  had 
regained  his  cattle,  and  the  drover  had  settled  with  him ;  that  Lambert 
went  to  defendant  with  this  information,  and  they  pursued  the  drove 
a  distance  of  about  70  miles,  and  overtook  it,  and  found  in  it  two  of 
defendant's  yearling  cattle;  that  plaintiff  owned  and  was  with  the 
drove,  and  defendant  charged  him  with  stealing  the  cattle,  and  said 
he  had  a  warrant  for  him,  and  would  take  him  back;  that  plaintiff 
said  he  would  rather  settle  it,  and  that  on  the  next  morning,  they  set- 
tled the  matter,  plaintiff  giving  defendant  cattle  to  the  value  of  $200, 
and  paying  him  in  money  the  value  of  the  two  yearlings,  which  plaintiff 
kept.  Soon  afterwards  defendant  saw  Gage,  who  told  him  of  plain- 
tiff's having  driven  off  his  cattle,  and  both  expressed  the  opinion  that 


268  LAW  OF  TORTS. 

all  was  not  right  with  plaintiff.  Plaintiff  afterwards  brought  actions 
against  defendant  for  slander  in  charging  him  with  stealing  the  cattle, 
and  to  recover  the  value  of  the  cattle  which  defendant  had  received  on 
the  settlement.  Thereafter  defendant  went  before  the  grand  jury, 
and  an  indictment  was  found  against  plaintiff,  but,  on  trial  thereof, 
after  hearing  witnesses  on  both  sides,  plaintiff  was  acquitted.  Subse- 
quently plaintiff  brought  this  action.  The  judge  found  a  verdict  for 
plaintiff  for  $250.  Defendant  moved  for  a  new  trial. 

BRONSON,  C.  J.  There  was  evidence  enough  in  the  case  to  war- 
rant the  jury  in  finding  that  the  defendant  set  the  prosecution  in  mo- 
tion from  a  bad  motive.  But  all  the  books  agree  that  proof  of  express 
malice  is  not  enough,  without  showing  also  the  want  of  probable  cause. 
"Probable  cause"  has  been  defined  as  a  reasonable  ground  of  suspicion, 
supported  by  circumstances  sufficiently  strong  in  themselves  to  warrant 
a  cautious  man  in  the  belief  that  the  person  accused  is  guilty  of  the 
offense  with  which  he  is  charged.  Munns  v.  Dupont  de  Nemours,  3 
Wash.  C.  C.  37,  Fed.  Cas.  No.  9,926.  However  innocent  the  plaintiff 
may  have  been  of  the  crime  laid  to  his  charge,  it  is  enough  for  the 
defendant  to  show  that  he  had  reasonable  grounds  for  believing  him 
guilty  at  the  time  the  charge  was  made.  In  Swaim  v.  Stafford,  25  N. 
C.  289,  and  Id.,  26  N.  C.  392,  the  action  was  brought  against  the  de- 
fendant, who  was  a  merchant,  for  charging  the  plaintiff  with  stealing 
a  piece  of  ribbon  from  his  store.  At  the  time  the  complaint  was  made 
the  defendant  had  received  such  information  as  induced  a  belief  of 
the  plaintiff's  guilt,  and  although  it  afterwards  turned  out  that  the 
property  had  not  been  taken  by  any  one,  and  was  never  out  of  the  de- 
fendant's possession,  it  was  held  that  an  action  for  malicious  prosecu- 
tion could  not  be  supported.  The  doctrine  that  probable  cause  de- 
pends on  the  knowledge  or  information  which  the  prosecutor  had  at 
the  time  the  charge  was  made  has  been  carried  to  a  great  length.  In 
Delegal  v.  Highley,  3  Bing.  N.  C.  950,  which  was  an  action  for  mali- 
ciously, and  without  probable  cause,  procuring  a  third  person  to  charge 
the  plaintiff  with  the  criminal  offense,  the  defendant  pleaded  specially, 
showing  that  the  plaintiff  was  guilty  of  the  offense  which  had  been  laid 
to  his  charge ;  and  the  plea  was  held  bad  irf  substance,  because  it  did 
not  show  that  the  defendant,  at  the  time  the  charge  was  made,  had 
been  informed  or  knew  the  facts  on  which  the  charge  rested.  The 
question  of  probable  cause  does  not  turn  on  the  actual  guilt  or  inno- 
cence of  the  accused,  but  upon  the  belief  of  the  prosecutor  concerning 
such  guilt  or  innocence.  Seibert  v.  Price,  5  Watts  &  S-  438,  40  Am. 
Dec.  525.  Without  going  into  particular  examination  of  the  evidence 
in  this  case,  it  is  enough  to  say  that  the  defendant,  at  the  time  he  went 
before  the  grand  jury,  had  strong  grounds  for  believing  that  the  plain- 
tiff had  stolen  the  cattle,  and,  so  far  as  appears,  not  a  single  fact  had 
then  come  to  his  knowledge  which  was  calculated  to  induce  a  different 


MALICIOUS  PROSECUTION.  269 

opinion.  Although  the  plaintiff  was  in  fact  innocent,  there  would  be 
no  color  for  this  action,  if  it  were  not  for  the  fact  that  the  defendant 
settled  the  matter  with  the  plaintiff,  instead  of  proceeding  against  him 
for  the  supposed  offense.  If  the  parties  intended  the  settlement  should 
extend  so  far  as  to  cover  up  and  prevent  a  criminal  prosecution,  the 
defendant  was  guilty  of  compounding  a  felony.  And  the  fact  that 
he  made  no  complaint  until  the  plaintiff  commenced  the  two  suits  against 
him  goes  far  to  show  that  he  was  obnoxious  to  that  charge,  and  that 
he  was  governed  more  by  his  own  interest  than  by  a  proper  regard  to 
the  cause  of  public  justice.  But,  however  culpable  the  defendant  may 
have  been  for  neglecting  his  duty  to  the  public,  that  cannot  be  made 
the  foundation  of  a  private  action  by  the  plaintiff.  Although  the  de- 
fendant may  have  agreed  not  to  prosecute,  and  the  complaint  may  have 
been  afterwards  made  from  a  malicious  feeling  towards  the  plaintiff, 
still  the  fact  of  probable  cause  remains;  and,  so  long  as  it  exists,  it 
is  a  complete  defense.  There  is  enough  in  the  defendant's  conduct  to 
induce  a  rigid  scrutiny  of  the  defense.  But  if  upon  such  scrutiny  it 
appears  that  he  had  reasonable  grounds  for  believing  the  plaintiff  guilty, 
and  there  is  nothing  to  show  that  he  did  not  actually  entertain  that 
belief,  there  is  no  principle  upon  which  the  action  can  be  supported. 
On  a  careful  examination  of  the  case,  I  am  of  opinion  that  the  verdict 
was  clearly  wrong.  But,  as  the  charge  of  the  judge  is  not  given,  we 
must  presume  that  the  case  was  properly  submitted  to  the  jury,  and  a 
new  trial  can  therefore  only  be  had  on  payment  of  costs. 
Ordered  accordingly. 

(The  definition  of  "probable  cause,"  which  this  case  gives  as  taken  from 
Munns  v.  Dupont  de  Nemours,  3  Wash.  C.  C.  37,  Fed.  Gas.  No.  9,926,  has  been 
often  approved  and  reiterated  in  subsequent  cases.  Anderson  v.  How,  116  N. 
Y.  336.  22  N.  E.  695;  Mitchell  v.  Logan,  172  Pa.  349,  33  Atl.  554;  Boyd  v. 
Cross,  35  Md.  194;  Miles  v.  Walker  [Neb.]  92  N.  W.  1014.  Some  decisions,  how- 
ever, disapprove  the  use  of  the  expression  "cautious  man"  in  the  definition 
[since  it  may  mean  an  overprudent  or  timorous  man],  and  substitute  for  it 
"ordinarily  prudent  man."  McClafferty  v.  Philp,  151  Pa.  86,  24  Atl.  1042; 
Eggett  v.  Allen,  106  Wis.  633,  82  N.  W.  556.  A  definition  often  cited  with  ap- 
proval is  this:  "Probable  cause  is  such  a  state  of  facts  in  the  mind  of  the 
prosecutor  as  would  lead  a  man  of  ordinary  caution  and  prudence  to  believe 
or  entertain  an  honest  and  strong  suspicion  that  the  person  accused  is  guilty." 
Bacon  v.  Towne,  4  Cush.  217;  Cohn  v.  Saidel,  71  N.  H.  558,  53  Atl.  800;  Eg- 
gett v.  Allen,  106  Wis.  633,  82  N.  W.  556;  Vinal  v.  Core,  18  W.  Va.  1.  Other 
definitions  say  "ordinarily  prudent  and  careful  man"  [Fox  v.  Smith  (R.  I.)  55 
Atl.  698;  Flam  v.  Lee,  116  Iowa,  289,  90  N.  W.  70,  93  Am.  St.  Rep.  242]; 
"reasonable  and  cautious  person"  [Christian  v.  Hanna,  58  Mo.  App.  37] ;  "or- 
dinarily prudent  and  cautious  man"  [Hicks  v.  Faulkner,  8  Q.  B.  D.  167,  affirmed 
in  46  L.  T.  (N.  S.)  12],  etc.  "A  person,"  it  is  said,  "who  suspects  another  of 
having  committed  an  offense  is  bound  to  verify  his  suspicions  by  such  inquiry 
as  reasonable  care  and  prudence  would  suggest,  under  the  circumstances  of 
the  particular  case,  before  making  a  complaint"  Bechel  v.  Pacific  Exp.  Co. 
[Neb.]  91  N.  W.  853 ;  Miller  v.  Railroad  Co.  [C.  C.]  41  Fed.  898. 

When  the  facts  of  the  case  are  undisputed,  either  being  admitted  or  other- 
wise established,  the  question  whether  there  was  probable  cause  is  one  of  law 


270  LAW  OF  TORTS. 

for  the  court  Toth  v.  Greisen  [N.  J.  Sup.]  51  Atl.  927;  Crescent  Live  Stock 
Co.  v.  Butchers'  Co.,  120  U.  S.  141,  7  Sup.  Ct.  472,  30  L.  Ed.  614;  Huckestein 
v.  N.  Y.  Life  Ins.  Co.,  205  Pa.  27,  54  Atl.  461;  Le  Clear  v.  Perkins,  103  Mich. 
131,  61  N.  W.  357,  26  L.  R.  A.  627;  Hazzard  v.  Flury,  120  N.  Y.  223,  24  N.  E. 
194.  But  when  the  facts  are  controverted  and  the  evidence  is  conflicting,  it  is 
for  the  jury  to  decide  what  the  real  facts  of  the  case  are,  but  for  the  court 
to  determine  whether  they  do  or  do  not  amount  to  probable  cause.  Mahaffey 
v.  Byers,  151  Pa.  92,  25  Atl.  93;  Boyd  v.  Cross,  35  Md.  194;  Stubbs  v.  Mulhol- 
land,  168  Mo.  47,  67  S.  W.  650;  Bank  of  Miller  v.  Richmon,  64  Neb.  Ill,  89 
N.  W.  627;  Heyne  v.  Blair,  62  N.  Y.  19;  Van  v.  Pacific  Coast  Co.  [C.  C.]  120 
Fed.  699.  The  jury  may,  in  such  cases,  be  instructed  hypothetically,  viz.,  that 
if  they  find  the  facts  in  a  designated  way,  then  such  facts  do  or  do  not  con- 
stitute probable  cause.  Erb  v.  German  Am.  Ins.  Co.,  112  Iowa,  357,  83  N.  W. 
1053;  Stewart  v.  Sonneborn,  98  U.  S.  187,  25  L.  Ed.  116;  Jones  v.  Wilmington 
&  W.  R.  Co.,  125  N.  C.  227,  "34  S.  E.  398;  Boush  v.  Fidelity  &  Deposit  Co.. 
100  Va.  735,  42  S.  E.  877 ;  Maynard  v.  Sigman  [Neb.]  91  N.  W.  576.  The  want 
of  probable  cause  cannot  be  inferred  from  any  degree  of  even  express  malice. 
Cohn  v.  Saidel,  71  N.  H.  558,  53  Atl.  800;  Stewart  v.  Sonneborn,  98  U.  S.  187, 
25  L.  Ed.  116.) 


(53  N.  Y.  14.) 

CARL  v.   AYERS. 

(Court  of  Appeals  of  New  York.     May  20.  1873.) 

MALICIOUS  PROSECUTION — ARREST  ON  MERE  SUSPICION. 

Although  a  person  is  justified  in  procuring  the  arrest  of  another  on  a 
criminal  charge,  where  the  apparent  facts  are  such  as  would  lead  a  dis- 
creet and  prudent  person  to  the  belief  that  a  crime  had  been  committed 
by  the  person  charged,  a  groundless  suspicion,  unwarranted  by  the  con- 
duct of  the  accused  or  by  facts  known  to  the  accuser  when  the  accusation 
is  made,  will  not  exempt  the  latter  from  liability  to  an  innocent  pers.m 
for  causing  his  arrest. 

Appeal  from  Supreme  Court,  General  Term,  Second  Department. 

Action  by  Joseph  Carl  against  George  L.  Ayers  for  malicious  prose- 
cution in  causing  the  arrest  and  imprisonment  of  plaintiff  on  a  charge 
of  stealing  or  attempting  to  steal  a  diamond  pin.  The  evidence  given 
by  plaintiff  was  in  substance  that,  being  on  a  steam-boat,  on  which 
were  also  defendant  and  his  wife  and  children,  and  his  attention  being 
attracted  by  the  severe  coughing  of  one  of  the  children,  and  intending 
to  tell  defendant  of  a  remedy  which  he  knew,  he  went  to  the  place 
where  they  were  sitting,  and,  being  unable  to  approach  defendant  in 
front,  stepped  behind  him,  and  touched  him  on  the  shoulder  in  order 
to  attract  his  attention,  and  said  he  wished  to  speak  with  him ;  that 
defendant  answered,  "If  you  have  anything  to  say,  say  it  here;"  that 
plaintiff  was  about  to  walk  away,  but  turned,  and  explained  to  defend- 
ant that  he  merely  wished  to  speak  to  him  in  regard  to  his  child's  sick- 
ness, to  which  defendant  answered,  "You  never  mind  about  my  child ; 
you  mind  your  own  business  and  I  will  mind  mine;"  that  soon  after- 
wards defendant  pointed  out  plaintiff  to  a  detective  officer,  and  charged 


MALICIOUS  PROSECUTION.  271 

plaintiff  with  larceny  or  attempt  to  steal  defendant's  diamond  pin,  and 
insisted  on  plaintiff's  arrest;  that  plaintiff  was  arrested  thereupon,  in 
the  presence  of  the  passengers,  about  half  an  hour  before  the  boat 
landed,  and  was  afterwards  taken  to  a  station-house  by  the  officer  in 
company  with  defendant,  and  a  charge  of  larceny  from  the  person  was 
preferred  against  him,  on  which  he  was  imprisoned  all  night  and,  the 
following  day  being  Sunday,  until  Monday  morning;  and  that  the 
justice  before  whom  he  was  then  brought,  after  hearing  the  testimony 
of  defendant  and  his  wife,  discharged  plaintiff.  Plaintiff's  complaint 
was  dismissed  by  the  trial  judge,  and  judgment  for  defendant  was 
entered  thereon,  which  was  affirmed  by  the  general  term  on  appeal. 
From  the  judgment  of  the  general  term  plaintiff  appealed. 

ANDREWS,  J.  The  court  was  not  justified  in  nonsuiting  the  plain- 
tiff if  there  was  any  evidence  of  the  want  of  probable  cause  for  causing 
his  arrest  and  imprisonment,  or  unless  the  case,  upon  the  whole  proof, 
was  such  that  a  verdict  for  the  plaintiff  upon  the  issue  would  have 
been  set  aside  by  the  court  as  against  evidence.  Masten  v.  Deyo,  2 
Wend.  424;  Davis  v.  Hardy,  6  Barn.  &  C.  225.  If  the  evidence  on 
the  part  of  the  plaintiff  would  have  justified  the  jury  in  finding  that  the 
defendant  acted  without  probable  cause,  then,  although  the  proof  on 
the  part  of  the  defendant  tended  to  the  opposite  conclusion,  the  nonsuit 
was  erroneously  granted.  There  was  no  independent  or  conceded  fact 
shown  on  the  part  of  the  defendant  which,  admitting  the  case  made  by 
the  plaintiff,  established  the  existence  of  probable  cause.  In  consider- 
ing the  propriety  of  the  nonsuit,  the  plaintiff  is  entitled  to  the  concession 
that  the  facts  existed  as  they  appear  in  the  evidence  on  his  part;  and 
upon  these  facts,  aided  by  any  fact  favorable  to  the  plaintiff  proved  by 
the  defendant,  the  right  of  the  court  to  nonsuit  is  to  be  determined. 
"Probable  cause,"  which  will  justify  a  criminal  accusation,  is  defined 
to  be  "a  reasonable  ground  of  suspicion,  supported  by  circumstances 
sufficiently  strong  in  themselves  to  warrant  a  cautious  man  in  the  be- 
lief that  the  person  accused  is  guilty  of  the  offense  with  which  he  is 
charged."  Munns  v.  Dupont  de  Nemours,  3  Wash.  C.  C.  37,  Fed. 
Cas.  No.  9,926;  Foshay  v.  Ferguson,  2  Denio,  617;  Bacon  v.  Towne, 
4  Cush.  218.  It  does  not  depend  upon  the  guilt  or  innocence  of 
the  accused,  or  upon  the  fact  whether  a  crime  has  been  committed. 
Baldwin  v.  Weed,  17  Wend.  224;  Bacon  v.  Towne,  supra.  A  per- 
son making  a  criminal  accusation  may  act  upon  appearances,  and,  if 
the  apparent  facts  are  such  that  a  discreet  and  prudent  person  would 
oe  led  to  the  belief  that  crime  had  been  committed  by  the  person  charged, 
he  will  be  justified,  although  it  turns  out  that  he  was  deceived,  and  that 
the  party  accused  was  innocent.  Public  policy  requires  that  a  person 
shall  be  protected  who  in  good  faith,  and  upon  reasonable  grounds, 
causes  an  arrest  upon  a  criminal  charge,  and  the  law  will  not  subject 
him  to  liability  therefor.  But  a  groundless  suspicion,  unwarranted  b) 


'J<2  LAW  OF  TORTS. 

the  conduct  of  the  accused,  or  by  facts  known  to  the  accuser,  when  the 
accusation  is  made,  will  not  exempt  the  latter  from  liability  to  an  inno- 
cent person  for  damages  for  causing  his  arrest.  A  man  has  no  right 
to  put  the  criminal  law  in  motion  against  another,  and  deprive  him  of 
his  liberty,  upon  mere  conjecture  that  he  has  been  guilty  of  a  crime. 
He  cannot  be  allowed  to  put  a  false  and  unreasonable  construction  upon 
the  conduct  of  another,  and  then  justify  himself  for  causing  the  arrest, 
by  claiming  that  he  acted  upon  appearances.  The  application  of  these 
familiar  principles  to  the  facts  in  this  case  leads  to  a  reversal  of  the 
judgment.  It  is  not  claimed  that  any  larceny  was  committed,  and 
there  was  not  upon  the  plaintiff's  narration  of  the  circumstances  any 
ground  for  charging  the  plaintiff  with  an  attempt  to  commit  a  larceny. 
The  case,  as  made  by  the  plaintiff,  is  this:  While  upon  the  boat  his 
attention  was  attracted  to  the  defendant's  child  by  her  severe  coughing, 
and  he  went  to  the  place  where  the  defendant  was  sitting  with  his  wife 
and  child,  to  inform  him  of  a  remedy,  and,  not  being  able  to  pass  in 
front  of  the  defendant,  he  went  behind  him,  and  touched  him  once  or 
twice  on  the  shoulder  to  attract  his  attention,  saying  he  wished  to 
speak  with  him.  He  was  roughly  answered,  and  turned  to  leave,  but 
turned  back,  and  stated  to  the  defendant  that  he  intended  to  speak  with 
him  about  his  child,  and  the  defendant  again  replied  with  great  in- 
civility, and  soon  afterwards  caused  the  plaintiff  to  be  arrested  on  the 
charge  of  an  attempt  to  steal  his  diamond  pin.  The  defendant  wore  a 
valuable  pin  in  his  shirt  bosom,  but  it  does  not  appear  that  the  plaintiff 
saw  it,  nor  had  he  touched  the  defendant's  person,  except  when  he 
put  'his  hand  upon  his  shoulder.  Upon  these  facts,  there  was  no  rea- 
sonable ground  to  suspect  that  the  plaintiff  had  a  criminal  motive. 
His  conduct  was  neither  unusual  nor  improper.  There  was  no  act  of 
the  plaintiff  which  could  be  construed  as  an  attempt  to  commit  a  crime. 
If  the  defendant  entertained  a  suspicion  that  the  plaintiff  designed  to 
take  his  pin,  it  was  not  justified  by  the  circumstances.  The  evidence 
on  the  part  of  the  defendant  materially  conflicted  with  that  of  the  plain- 
tiff, but  we  can  consider  only  the  case  made  by  the  plaintiff,  and  we 
are  of  opinion  that  the  evidence  on  his  part  disclosed  a  want  of  prob- 
able cause  for  the  arrest,  and  that  the  nonsuit  was  improperly  granted. 
The  judgment  should  be  reversed,  and  a  new  trial  ordered,  with  costs 
to  abide  the  event. 

PECKHAM,  RAPALLO,  and  FOLGER,  JJ.,  concur.  CHURCH, 
C.  J.,  and  GROVER  and  ALLEN,  JJ.,  do  not  vote. 

(For  other  good  illustrations  of  a  prosecution  without  probable  cause,  see 
Wanser  v.  Wyckoff,  9  Hun,  178;  Hazzard  v.  Flury,  120  N.  Y.  223,  24  N.  E.  104; 
Lacy  v.  Mitchell,  23  Ind.  67.) 


MALICIOUS  PROSECUTION.  273 


Effect  of  advice  of  counsel. 

(25  Pa.  275.) 

WALTER  v.  SAMPLE  (In  part). 
(Supreme  Court  of  Pennsylvania.     1855.) 

MALICIOUS  PROSECUTION — PROBABLE  CAUSE— ADVICE  OF  COUNSEL. 

In  an  action  for  malicious  prosecution,  defendant,  to  avail  himself  of 
the  defense  that  he  acted  under  professional  advice,  must  show  that  he 
submitted  all  the  facts  which  he  knew  were  capable  of  proof  fairly  to  his 
counsel,  and  that  he  acted  bona  fide  on  the  advice  given.  He  thus  nega- 
tives, if  not  the  malice,  the  want  of  probable  cause;  and  he  is  not  liable, 
even  though  the  facts  did  not  warrant  the  advice  and  the  prosecution. 

Error  to  District  Court,  Allegheny  County. 

Action  on  the  case  for  malicious  prosecution.  At  the  trial,  a 
member  of  the  bar  testified,  on  behalf  of  defendant,  that  the  latter 
stated  to  him  the  facts  of  the  case,  and  acted  under  his  advice  in 
instituting  the  alleged  malicious  prosecution.  The  court  instructed 
the  jury  that  "the  opinion  of  private  counsel  cannot  amount  to  proof 
of  probable  cause,  unless  the  facts  clearly  warrant  it,  and  were  cor- 
rectly stated."  The  jury  found  a  verdict  for  plaintiff.  Defendant 
assigned  error  in  said  instruction. 

WOODWARD,  J.  This  was  an  action  on  the  case  for  malicious 
prosecution,  and  the  only  question  presented  by  the  record  is  wheth- 
er the  court  were  right  in  instructing  the  jury  that  "the  opinion  of 
private  counsel  cannot  amount  to  proof  of  probable  cause,  unless 
the  facts  clearly  warrant  it,  and  were  correctly  stated."  Ever  since 
the  case  of  Farmer  v.  Darling,  4  Burrows,  1971,  it  has  been  held 
that  malice,  either  express  or  implied,  and  the  want  of  probable 
cause,  must  both  concur  to  support  actions  of  this  nature.  The 
presumption  of  law  is  that  every  public  prosecution  is  founded  in 
probable  cause,  and  the  burden  is  therefore,  in  the  first  instance,  on 
the  plaintiff;  but  when  he  has  submitted  evidence  of  want  of  prob- 
able cause,  or  of  .circumstances  from  which  a  violent  presumption 
would  arise  that  it  was  wanting,  the  burden  of  proof  is  shifted  onto 
the  defendant,  and  then  it  is  competent  for  him  to  show  that  he 
acted  under  professional  advice.  To  make  this  defense  available  he 
must  show  that  he  submitted  all  the  facts  which  he  knew  were  capa- 
ble of  proof  fairly  to  his  counsel,  and  that  he  acted  bona  fide  on 
the  advice  given.  This  proved,  he  negatives,  if  not  the  malice,  the 
want  of  probable  cause.  I  accede  to  the  proposition,  said  Bayley,  J., 
in  Ravenga  v.  Mackintosh,  2.  Barn.  &  C.  693,  that  if  a  party  lays  all 
the  facts  of  his  case  fairly  before  counsel,  and  acts  bona  fide  upon 
the  opinion  given  by  that  counsel,  (however  erroneous  that  opinion 
may  be,)  he  is  not  liable  to  an  action  of  this  description.  See  the 
CHASE  (2o  ED.) — 18 


274  LAW  OF  TORTS. 

cases  cited  2  Saund.  PI.  &  Ev.  marg.  pp.  659,  660.  In  Sommer  v. 
Wilt,  4  Serg.  &  R.  24,  Judge  Duncan  plainly  intimated  his  opinion 
that  such  evidence  would  be  a  defense  to  the  action,  as  negativing 
the  imputation  of  malice ;  and  in  the  case  of  Hall  v.  Smith,  reported 
in  7  Leg.  Int.  7,  the  district  court  of  Philadelphia  treated  such  evi- 
dence as  an  answer  to  the  imputation  both  of  malice  and  want  of 
probable  cause,  between  which,  it  was  said,  there  is  no  difference 
in  the  consideration  of  a  matter  of  this  kind.  Professors  of  the 
law  are  the  proper  advisers  of  men  in  doubtful  circumstances,  and 
their  advice,  when  fairly  obtained,  exempts  the  party  who  acts  upon 
it  from  the  imputation  of  proceeding  maliciously  and  without  prob- 
able cause.  It  may  be  erroneous,  but  the  client  is  not  responsible 
for  the  error.  He  is  not  the  insurer  of  his  lawyer.  Whether  the 
facts  amount  to  probable  cause  is  the  very  question  submitted  to 
counsel  in  such  cases ;  and,  when  the  client  is  instructed  that  they 
do,  he  has  taken  all  the  precaution  demanded  of  a  good  citizen.  To 
manifest  the  good  faith  of  the  party,  it  is  important  that  he  should 
resort  to  a  professional  adviser  of  competency  and  integrity.  He  is 
not  to  make  such  a  resort  "a  mere  cover  for  the  prosecution ;"  but, 
when  he  has  done  his  whole  duty  in  the  premises,  he  is  not  to  be 
made  liable  because  the  facts  did  not  clearly  warrant  the  advice  and 
prosecution.  The  testimony  here  was  that  Sample  stated  the  facts 
of  the  case,  and  there  is  no  suggestion  on  the  record  that  they  were 
not  fairly  stated.  Suppression,  evasion,  or  falsehood  would  make 
him  liable;  but  if  fairly  submitted,  and  if  the  advice  obtained  was 
followed  in  good  faith,  he  had  a  defense  to  the  action,  and  the  court 
should  have  given  him  the  benefit  of  it. 
The  judgment  is  reversed,  and  a  venire  de  novo  awarded. 

(This  doctrine  is  well  settled.  McClafferty  v.  Philp,  151  Pa.  86,  24  Atl.  1042; 
Black  v.  Buckingham,  174  Mass.  102,  54  N.  E.  494;  Magowan  v.  Rickey, 
64  N.  J.  Law,  402,  45  Atl.  804;  Maynard  v.  Sigman  [Neb.]  91  N.  W.  576; 
Perry  v.  Sulier,  92  Mich.  72,  52  N.  W.  788;  Neufeld  V.  Rodeminski,  144 
111.  83,  32  N.  B.  913;  Messman  v.  Ihlenfeldt,  89  Wis.  585,  62  N.  W.  522; 
Hall  v.  Suydam,  6  Barb.  83;  White  v.  Carr,  71  Me.  555,  36  Am.  Rep.  533. 
Some  of  the  cases,  however,  regard  the  advice  of  counsel  as  showing  the  ex- 
istence of  probable  cause,  while  others  treat  it  as  bearing  on  the  question 
whether  there  was  malice  [Vinal  v.  Core,  18  W.  Va.  1;  Hazzard  v.  Flury,  120 
N.  Y.  223,  24  N.  E.  194];  and  others  still  regard  it  as  relating  to  both  questions 
[Folger  v.  Washburn,  137  Mass.  60;  Le  Clear  v.  Perkins,  103  Mich.  131,  61  N. 
W.  357,  26  L.  R.  A.  627].  This  last  view  seems  the  better  one.  If  the  client 
makes  false  statements  to  the  lawyer,  or  does  not  make  a  full,  fair,  and  frank 
disclosure  of  the  facts  of  the  case,  or  does  not  act  in  good  faith  upon  the  ad- 
vice the  lawyer  gives  him,  such  advice  is  no  defense.  Miles  v.  Walker  [Neb.] 
92  N.  W.  1014 ;  Bell  v.  Atlantic  City  R.  Co.,  202  Pa.  178,  51  Atl.  600 ;  and  the 
cases  supra.  Some  cases  say  that  the  lawyer  must  be  "reputable  and  in  good 
standing,"  in  order  that  his  advice  may  be  a  protection.  Roy  v.  Goings,  112 
111.  656;  Stubbs  v.  Mulholland,  168  Mo.  47,  67  S.  W.  650;  Williams  v.  Case- 
beer,  126  Cal.  77,  58  Pac.  380.  Advice  obtained  from  a  justice  of  the  peace,  it 
is  generally  held,  is  no  defense  [Necker  v.  Bates,  118  Iowa,  545,  92  N.  W.  i'iil : 


MALICIOUS  PROSECUTION.  275 

Mauldln  r.  Ball,  104  Term.  597,  58  S.  W.  248];  but  the  contrary  rule  Is  now  ap- 
plied in  Massachusetts  to  her  inferior  magistraies,  since  they  are  now  required 
to  have  a  competent  legal  training  [Monaghan  v.  Cox,  155  Mass.  487,  30  N.  EL 
467,  31  Am.  St  Rep.  555].) 


Termination  of  the  proceeding. 

(109  Mass.  158,  12  Am.  Rep.  682.) 

CARDIVAL  v.  SMITH. 
(Supreme  Judicial  Court  of  Massachusetts.    January  Term,  1872.) 

MALICIOUS  PROSECUTION— TERMINATION  OF  PROCEEDING. 

Where  the  plaintiff  in  a  civil  action,  after  maliciously  and  without  prob- 
able cause  procuring  the  arrest  of  the  defendant  on  the  writ  therein,  fails 
to  have  the  writ  returned  into  the  office  of  the  clerk  of  the  court,  or  to 
appear  at  the  court  to  which  the  writ  was  returnable,  there  is  a  final 
determination  of  the  action,  such  that  the  defendant  may  maintain  an  ac- 
tion for  malicious  prosecution. 

Appeal  from  Superior  Court. 

Action  of  tort  by  Peter  Cardival  against  Joseph  W.  Smith, 
brought  in  the  superior  court  by  writ  dated  November  26,  1869. 
The  declaration  alleged  that  defendant  maliciously,  and  without  prob- 
able cause,  procured  the  arrest  of  plaintiff  on  a  writ  returnable  to 
the  superior  court  at  September  term,  1869;  that  plaintiff  "duly 
appeared  at  said  court  to  which  said  writ  was  returnable,  but  that 
the  defendant  did  not  appear,  well  knowing  that  he  had  no  probable 
cause  to  maintain  the  action  against  the  plaintiff,  nor  was  said  writ 
ever  returned  into  the  office  of  the  clerk  of  said  court."  Defendant 
demurred  to  the  declaration  on  the  ground  that  it  appeared  "that 
the  said  suit  alleged  to  be  malicious  was  not  determined  in  favor  of 
the  defendant  therein  by  a  judgment  of  court."  The  superior  court 
sustained  the  demurrer.  Plaintiff  appealed. 

GRAY,  J.  The  general  rules  of  law  governing  actions  for  ma- 
licious arrest  and  prosecution  have  long  been  well  settled.  In  the 
words  of  Lord  Camden,  "this  is  an  action  for  bringing  a  suit  at 
law ;  and  courts  will  be  cautious  how  they  discourage  men  from  suing. 
When  a  party  has  been  maliciously  sued,  and  held  to  bail,  malice, 
and  that  it  was  without  any  probable  cause,  must  be  alleged  and 
proved."  Goslin  v.  Wilcock,  2  Wils.  302,  307.  "The  new  action 
must  not  be  brought  before  the  first  be  determined,  because  till  then 
it  cannot  appear  that  the  first  was  unjust."  Bull.  N.  P.  12. 
When  the  prosecution  alleged  to  have  been  malicious  is  by  complaint 
in  behalf  of  the  government  for  a  crime,  and  in  pursuance  thereof 
an  indictment  has  been  found  and  presented  to  a  court  having  ju- 
risdiction to  try  it,  an  acquittal  by  a  jury  must  be  shown,  and  a 


276  LAW  OF  TORTS. 

nolle  proseqtti  entered  by  the  attorney  for  the  government  is  not 
sufficient ;  for  the  finding  of  the  grand  jury  is  some  evidence  of 
probable  cause,  and  another  indictment  may  still  be  found  on  the 
same  complaint.  Bull.  N.  P.  14;  Bacon  v.  Towne,  4  Cush.  217; 
Parker  v.  Farley,  10  Cush.  279;  Bacon  v.  Waters,  2  Allen,  400. 
But  if  it  is  commenced  by  complaint  to  a  magistrate  who  has  juris- 
diction only  to  bind  over  or  discharge,  his  record,  stating  that  the 
complainant  withdrew  his  prosecution,  and  it  was  thereupon  ordered 
that  the  accused  be  discharged,  is  equivalent  to  an  acquittal.  Sayles 
v.  Briggs,  4  Mete.  421,  426.  If  the  accused,  after  being  arrested, 
is  discharged  by  the  grand  jury's  finding  no  indictment,  that  shows 
a  legal  end  to  the  prosecution.  Jones  v.  Givin,  Gilb.  185,  220;  Bul- 
ler,  J.,  in  Morgan  v.  Hughes,  2  Term  R.  225,  232 ;  Freeman  v. 
Arkell,  2  Barn.  &  C.  494,  3  Dowl.  &  R.  669;  Michell  v.  Williams, 
II  Mees.  &  W.  205;  Bacon  v.  Waters,  2  Allen,  400.  And  if  the 
prosecutor,  after  procuring  the  arrest,  fails  to  enter  any  complaint, 
this,  with  the  attending  circumstances,  is  sufficient  to  be  submitted 
to  the  jury  as  evidence  of  want  of  probable  cause.  Venafra  v.  John- 
son, 10  Bing.  301,  3  Moore  &  S.  847,  and  6  Car.  &  P.  50;  McDonald 
v.  Rooke,  2  Bing.  N.  C.  217,  2  Scott,  359. 

When  the  suit  complained  of  is  a  civil  action,  wholly  under  the 
control  of  the  plaintiff  therein,  it  would  seem  that  a  discharge  there- 
of by  him,  without  any  judgment  or  verdict,  is  a  sufficient  termina- 
tion of  the  suit ;  and  that,  for  instance,  if  one  maliciously  causes  an- 
other to  be  arrested  and  held  to  bail  for  a  sum  not  due,  or  for  more 
than  is  due,  knowing  that  there  is  no  probable  cause,  and,  after  en- 
tering his  action,  becomes  nonsuit,  or  settles  the  case  upon  receiving 
part  of  the  sum  demanded,  an  action  for  a  malicious  prosecution 
may  be  maintained  against  him.  Nicholson  v.  Coghill,  4  Barn.  & 
C.  21,  6  Dowl.  &  R.  12;  Watkins  v.  Lee,  5  Mees.  &  W.  270;  Ross 
v.  Norman,  5  Exch.  359;  Bicknell  v.  Dorion,  16  Pick.  478,  487; 
Savage  v.  Brewer,  Id.  453,  28  Am.  Dec.  255.  In  Arundell  v.  White, 
14  East,  216,  it  was  held  that  an  entry  in  the  minute-book  of  the 
sheriff's  court  in  London,  opposite  the  entry  of  a  suit  in  that  court, 
that  it  was  withdrawn  by  the  plaintiff's  order,  was  sufficient  evidence 
of  a  termination  of  that  suit  to  sustain  an  action  for  malicious  prose- 
cution. In  Pierce  v.  Street,  3  Barn.  &  Adol.  397,  the  declaration, 
after  setting  out  the  suing  out  of  a  writ  in  an  ordinary  action  at 
law  against  the  plaintiff,  and  an  arrest  and  holding  to  bail  thereon, 
and  alleging  that  it  was  done  maliciously  and  without  probable  cause, 
averred  that  no  proceedings  were  thereupon  had  in  that  action,  and 
that  the  plaintiff  therein  did  not  declare  against  the  defendant  nor 
prosecute  his  suit  against  him  with  effect,  but  voluntarily  permitted 
the  action  to  be  discontinued  for  want  of  prosecution  thereof;  where- 
upon and  whereby,  and  according  to  the  practice  of  the  court,  the 
suit  became  determined.  At  the  trial  of  the  action  for  malicious 


MALICIOUS  PROSECUTION.  277 

arrest,  it  appeared  that  no  declaration  was  delivered  or  filed  in  the 
former  action,  and  that  this  action  was  not  commenced  until  a  year 
after  the  return-day  of  that.  It  was  objected  that,  there  being  no 
judgment  of  court,  there  was  no  evidence  of  the  determination  of 
the  suit  to  satisfy  the  averment  in  the  declaration.  But  Lord  Lynd- 
hurst,  C.  B.,  thought  there  was,  and  overruled  the  objection;  and 
his  ruling  was  confirmed  by  the  court  of  queen's  bench,  Lord  Ten- 
terden,  C.  J.,  saying,  "The  length  of  time  which  had  elapsed  shows 
that  the  suit  was  abandoned  altogether;"  and  Parke,  J.,  "When  the 
cause  is  out  of  court,  it  must  be  considered  as  determined."  Our 
own  statutes  expressly  provide  that,  if  no  declaration  is  inserted  in  the 
writ,  or  filed  before  or  at  the  return  term,  it  shall  be  a  discontinuance 
of  the  action.  Gen.  St.  c.  129,  §  9.  But  the  present  case'does  not  require 
us  to  consider  what  disposition  must  be  shown  of  a  civil  action  which 
has  once  been  entered  in  court,  in  order  to  constitute  a  final  determina- 
tion thereof.  A  plaintiff  cannot  be  compelled  to  enter  his  action,  and, 
until  he  does,  may  judge  for  himself  whether  he  will  proceed  with  it  or 
not.  If  he  does  not  enter  it,  it  never  comes  before  the  court,  nor  be- 
comes the  subject  of  any  judgment,  nor  appears  on  its  records,  unless 
the  defendant,  upon  filing  a  complaint  at  the  return  term,  obtains  judg- 
ment for  his  costs.  If  the  defendant  does  not  make  such  a  com- 
plaint, the  action  is  not  the  less  finally  abandoned  and  determinec* 
by  the  neglect  of  the  plaintiff  to  proceed  with  it.  Clark  v.  Mon 
tague,  I  Gray,  446,  448 ;  Lombard  v.  Oliver,  5  Gray,  8 ;  Jewett  v. 
Locke,  6  Gray,  233.  The  only  cause  assigned  for  the  demurrer  be- 
ing that  the  declaration  shows  no  determination  of  the  former  suil 
in  favor  of  the  defendant  therein  by  a  judgment  of  court,  it  must  be 
overruled. 

(In  Clark  v.  Cleveland,  6  Hill,  344,  the  rule  is  laid  down  that  it  is  a  suf- 
ficient termination  of  the  proceeding,  if  "the  particular  prosecution  be  disposed 
of  in  such  a  manner  that  this  cannot  be  revived,  and  the  prosecutor  must  be 
put  to  a  new  one."  This  rule  is  satisfied,  says  the  same  case,  if  a  bill  of 
indictment  is  returned  "Not  found,"  or  if  a  person  accused  of  crime  is  dis- 
charged by  a  committing  magistrate,  or  if  in  the  case  of  a  civil  action  the  ac- 
tion is  discontinued.  The  same  general  rule  is  also  stated  in  Robbins  v.  Rob- 
bins,  133  N.  Y.  597,  30  N.  E.  977  [discharge  by  magistrate],  and  in  Apgar  v. 
Woolston.  43  N.  J.  Law,  57.  The  rule  has  been  applied  in  cases  of  a  discharge 
by  a  magistrate  [Jones  v.  Finch,  84  Va.  207,  4  S.  E.  342;  Waldron  v.  Sperry, 
53  W.  Va.  116,  44  S.  E.  283;  Brown  v.  Randall,  36  Conn.  56,  4  Am.  Rep.  35; 
Bank  of  Miller  v.  Richmon,  64  Neb.  Ill,  89  N.  W.  627;  Rider  v.  Kite,  61  N.  J. 
Law,  8,  38  Atl.  754;  Moyle  v.  Drake,  141  Mass.  238,  6  N.  E.  520;  Mentel  v. 
Hippely,  165  Pa.  558,  30  Atl.  1021];  and  in  cases  of  an  abandonment  of  the 
prosecution  [Page  v.  Citizens'  Banking  Co.,  Ill  Ga.  73.  36  S.  E.  418,  51  L.  R.  A. 
463,  78  Am.  St.  Rep.  144;  Fay  v.  O'Neill,  36  N.  Y.  11];  and  so  where  the  grand 
jury  refuses  to  find  an  indictment  [Potter  v.  Casterline,  41  N.  J.  Law,  22]: 
but  when  a  prosecution  is  ended  by  means  of  a  compromise,  this  is  not  a  suf- 
ficient termination  to  allow  an  action  for  malicious  prosecution  [Russell  v. 
Morgan  (R.  I.)  52  Atl.  809;  Craig  v.  Ginn,  3  Pennewill,  117,  48  Atl.  192,  53  L. 
R.  A.  715.  94  Am.  St.  Rep.  77  (citing  many  cases);  Gallagher  Y.  Stoddard,  47 
Hun,  101].) 


278  LAW  OF  TORTS. 

(66  N.  H.  375,  22  Atl.  456.) 

WOODMAN  v.  PRESCOTT. 

(Supreme  Court  of  New  Hampshire.     Rockingham.     March  13,  1891.) 

ENTBY  OF  NOLLE  PBOSEQUI— EFFECT  OF  AS  TEEMINATTON  OF  PBOSECTJTION. 

The  entry  of  a  nolle  prosequi  in  a  criminal  case  is  a  sufficient  termina- 
tion of  the  proceeding  to  entitle  the  accused  to  maintain  an  action  for 
malicious  prosecution. 

Exceptions  from  Rockingham  County;  before  Justice  A.  P.  Car- 
penter. 

Action  by  James  K.  Woodman  against  Samuel  Prescott  for  ma- 
licious prosecution.  Judgment  for  plaintiff.  Defendant  brings  ex- 
ceptions. Exceptions  overruled. 

At  the  October  term,  1885,  the  grand  jury,  on  the  complaint  of 
the  defendant,  returned  an  indictment  against  the  plaintiff  for  lar- 
ceny, (under  Gen.  Laws,  c.  278,  §  u,)  alleged  to  have  been  commit- 
ted, and  which  was  committed,  if  at  all,  in  March,  1880.  A  nolle 
prosequi  was  entered  at  the  October  term,  1886.  The  plaintiff  has 
always  resided  in  this  state.  There  was  evidence  tending  to  show 
that  the  defendant  had  no  knowledge  of  the  facts  on  which  the  prose- 
cution was  founded  until  1885,  and  that  the  nolle  prosequi  was  en- 
tered because  Prescott  did  not  receive  notice  of  the  time  fixed  for 
the  trial  in  season  to  procure  the  attendance  of  the  witnesses  for  the 
state,  but  the  plaintiff  claimed  the  fact  to  be  otherwise.  At  the  close 
of  the  plaintiff's  argument  to  the  jury  the  defendant  requested  the 
court  to  rule  that  the  entering  of  a  nolle  prosequi  was  not  a  suffi- 
cient termination  of  the  prosecution  to  entitle  the  plaintiff  to  main- 
tain the  action.  The  court  denied  .the  request,  and  the  defendant 
fixcepted 

CLARK,  J.  To  maintain  an  action  for  malicious  prosecution,  the 
plaintiff  must  show  that  the  proceeding  complained  of  as  malicious 
was  instituted  without  probable  cause,  and  is  ended.  "The  new  ac- 
tion must  not  be  brought  before  the  first  be  determined,  because  till 
then  it  cannot  appear  that  the  first  was  unjust."  Bull.  N.  P.  12. 
If  the  first  action  is  still  pending,  or  if  there  has  been  a  judgment 
against  the  plaintiff,  or  if  he  has  terminated  the  suit  by  paying  what 
was  demanded,  ("unless  the  payment  was  made  under  duress,  Mor- 
ton v.  Young,  55  Me.  24,  92  Am.  Dec.  565,)  or  by  compromise,  he 
cannot  be  admitted  to  say  that  the  action  was  commenced  without 
probable  cause,  and  consequently  cannot  have  an  action  for  malicious 
prosecution.  If  there  has  been  a  judgment  in  the  plaintiff's  favor, 
or  the  nature  of  the  proceeding  was  such  that  he  had  no  opportunity 
to  make  a  contest  and  obtain  a  decision  in  his  favor,  as  where  one 
maliciously  causes  another  to  be  arrested  and  held  to  bail  in  a  civil 


MALICIOUS  PROSECUTION.  279 

action,  and  fails  to  enter  the  action,  (Cardival  v.  Smith,  109  Mass. 
158,  12  Am.  Rep.  682,)  he  may  bring  an  action  for  malicious  prose- 
cution. Whether  the  entry  of  nolle  prosequi  is  a  sufficient  termina- 
tion of  a  criminal  suit  to  allow  the  party  prosecuted  to  commence 
an  action  for  malicious  prosecution  is  a  question  upon  which  the 
authorities  are  not  uniform.  In  Massachusetts  it  is  held  that  such 
an  entry  is  not  necessarily  sufficient,  and  it  is  said  "that  whether  a 
prosecution  has  been  so  terminated  as  to  authorize  the  party  prose- 
cuted to  commence  an  action  for  malicious  prosecution  is  to  be  de- 
termined by  the  facts  of  the  particular  case,  of  which  facts  the  entry 
of  nolle  prosequi  may  be  one  of  several,  may  be  the  only  fact,  may 
be  a  controlling  fact,  or  may  be  an  entirely  unimportant  one." 
Graves  v.  Dawson,  130  Mass.  78,  39  Am.  Rep.  429.  In  Langford 
v.  Railroad  Co.,  144  Mass.  431,  n  N.  E.  697,  Morton,  C.  J.,  says: 
"The  entry  of  a  nolle  prosequi  by  the  district  attorney  of  his  own 
motion,  followed  by  a  discharge  of  the  accused  party  by  the  court, 
may  be  such  a  termination  of  the  prosecution  as  will  enable  the 
party  to  maintain  an  action  for  malicious  prosecution."  And  it  is 
held  that  a  discharge  by  a  magistrate  having  only  authority  to  bind 
over  is  a  sufficient  termination  of  the  proceedings.  Moyle  v.  Drake, 
141  Mass.  238,  242,  6  N.  E.  520.  In  other  jurisdictions  the  entry 
of  a  nolle  prosequi  is  held  to  be  sufficient.  Stanton  v.  Hart,  27 
Mich.  539;  Hatch  v.  Cohen,  84  N.  C.  602,  37  Am.  Rep.  630;  Brown 
v.  Randall,  36  Conn.  56,  4  Am.  Rep.  35 ;  Apgar  v.  Woolston,  43  N. 
J.  Law,  57.  In  the  latter  case  it  is  said:  "No  action  for  a  malicious 
prosecution  can  be  brought  while  the  criminal  proceedings  are  pend- 
ing. When  the  criminal  prosecution  is  ended,  if  it  terminates  in 
favor  of  the  accused,  he  may  then  maintain  his  action  for  a  malicious 
prosecution.  Except  to  confer  on  the  accused  the  capacity  to  sue,  the 
manner  in  which  the  prosecution  terminated  is  immaterial.  The  law  re- 
quires only  that  the  particular  prosecution  complained  of  shall  have  been 
terminated,  and  not  that  the  liability  of  the  plaintiff  to  prosecution  for 
the  same  offense  shall  have  been  extinguished,  before  the  action  for  ma- 
licious prosecution  is  brought.  Consequently  the  refusal  of  the  grand 
jury  to  find  an  indictment,  a  nolle  prosequi,  or  any  proceeding  by  which 
the  particular  prosecution  is  disposed  of,  in  such  a  manner  that  it 
cannot  be  revived,  and  that  the  prosecutor,  if  he  intends  to  proceed 
further,  must  institute  proceedings  de  novo,  is  a  sufficient  termina- 
tion of  the  prosecution  to  enable  the  plaintiff  to  bring  his  action." 
So,  also,  Judge  Cooley  says:  "The  reasonable  rule  seems  to  be 
that  the  technical  prerequisite  is  only  that  the  particular  prosecution 
be  disposed  of  in  such  a  manner  that  this  cannot  be  revived,  and  the 
prosecutor,  if  he  proceeds  further,  will  be  put  to  a  new  one."  Cooley, 
Torts,  186,  citing  Clark  v.  Cleveland,  6  Hill,  344,  347;  Cardival  v. 
Smith.  109  Mass.  159,  12  Am.  Rep.  682;  Driggs  v.  Burton,  44  Vt. 
124;  Leever  v.  Hamill,  57  Ind.  423.  The  rule  supported  by  reason 


280  LAW  OF  TORTS. 

and  authority  seems  to  be  that  if  the  proceeding  has  been  terminated 
in  the  plaintiff's  favor,  without  procurement  or  compromise  on  his 
part,  in  such  a  manner  that  it  cannot  be  revived,  it  is  a  sufficient 
termination  to  enable  him  to  bring  an  action  for  a  malicious  prose- 
cution. 

Exceptions  overruled. 

CARPENTER,  J.,  did  not  sit.     The  others  concurred. 

(The  following  cases  hold  that  a  nolle  prosequi  is  not  a  sufficient  termination: 
Garing  v.  Fraser,  76  Me.  37;  Ward  v.  Reasor,  98  Va.  399,  36  S.  E.  470.  To  the 
contrary  are  Murphy  v.  Moore  [Pa.]  11  Atl.  665 ;  Woodworth  v.  Mills,  61  Wis. 
44,  20  N.  W.  728,  50  Am.  Rep.  135;  Moulton  v.  Beecher,  1  Abb.  N.  C.  193.  In 
Lowe  v.  Wartman,  47  N.  J.  Law,  413,  1  Atl.  489,  it  is  said  that  a  criminal 
prosecution  may  be  said  to  have  terminated,  [1]  where  there  is  a  verdict  of  not 
guilty;  [2]  where  the  grand  jury  ignores  a  bill;  [3]  where  a  nolle  prosequi  is 
entered ;  [4]  where  the  accused  has  been  discharged  from  bail  or  imprisonment. 

A  final  judgment  for  the  defendant  in  the  prosecution  alleged  to  have  been 
malicious  is  a  sufficient  termination,  even  though  there  may  be  a  right  of  ap- 
peal. Luby  v.  Bennett,  111  Wis.  313,  87  N.  W.  804,  56  L.  R.  A.  261,  87  Am.  St 
Rep.  897.  It  seems,  however,  that  an  appeal  from  the  judgment  may  furnish  a 
reason  for  staying  the  trial  of  the  action  for  malicious  prosecution  until  the 
decision  of  the  appeal.  Marks  v.  Townsend,  97  N.  Y.  590.) 


Malicious   prosecution    of  a    civil   action  —  Different   doc- 
trines. 

(175  111.  619,  51  N.  E.  569,  67  Am.  St.  Rep.  242.) 

SMITH  v.  MICHIGAN  BUGGY  CO.  (in  part). 

(Supreme  Court  of  Illinois.     Oct  24,  189&) 

MALICIOUS  PBOSECUTION  OF  CIVIL  ACTION. 

An  action  will  not  lie  for  the  malicious  prosecution  of  a  civil  action  with- 
out probable  cause,  where  the  process  in  such  suit  was  by  summons  only, 
and  not  accompanied  by  arrest  of  the  person,  or  seizure  of  his  property,  or 
other  special  injury  not  necessarily  resulting  in  all  suits  prosecuted  to 
recover  for  like  causes  of  action. 

Error  to  Appellate  Court,  First  District. 

Trespass  on  the  case  by  Alfred  A.  Smith  against  the  Michigan 
Buggy  Company  to  recover  damages  for  the  alleged  malicious  prose- 
cution of  an  ordinary  civil  action  without  probable  cause  by  the  de- 
fendant against  the  plaintiff.  From  a  judgment  of  the  appellate 
court  (66  111.  App.  516)  affirming  a  judgment  for  defendant,  plaintiff 
brings  error.  Affirmed. 

MAGRUDER,  J.  The  suit  which  was  begun  by  the  defendant 
in  error  against  the  plaintiff  in  erroi  in  Michigan  was  an  ordinary 


MALICIOUS  PROSECUTION.  28] 

civil  suit,  and  resulted  in  favor  of  plaintiff  in  error.  It  is  alleged 
in  the  declaration  in  the  case  at  bar  that  the  suit  in  Michigan  was  a 
malicious  prosecution,  and  without  probable  cause;  but  it  is  not 
alleged  or  claimed  that  in  that  suit  the  plaintiff  in  error  was  arrested, 
or  that  any  of  his  property  was  seized,  nor  does  it  appear  that  the 
plaintiff  in  error  therein  suffered  any  special  damage,  over  and  above 
the  ordinary  expenses  and  trouble  which  are  attendant  upon  the 
defense  of  an  ordinary  civil  suit.  The  question,  therefore,  which  is 
presented  in  this  case,  and  the  only  question  which  we  deem  it  neces- 
sary to  consider,  is  whether  damages  can  be  recovered  for  the  ma- 
licious prosecution  without  probable  cause  of  an  ordinary  civil  suit, 
begun  by  personal  service  of  process,  and  unaccompanied  either  by 
an  arrest  of  the  person  or  by  seizure  of  property.  It  is  well  settled 
that  malicious  prosecution  is  a  proper  action  for  the  recovery  of 
damages  for  the  institution  of  a  civil  suit  with  malice  and  without 
probable  cause,  where  the  defendant  is  deprived  of  his  personal  lib- 
erty, or  where  there  is  an  attachment  or  seizure  of  his  property. 
But  whether  malicious  prosecution  will  lie  in  such  case  in  the  ab- 
sence of  any  interference  with  personal  liberty,  and  in  the  absence 
of  any  seizure  of  property,  is  a  question  upon  which  the  authorities 
are  very  much  divided.  The  question  above  indicated  has  never 
been  squarely  decided  in  any  case  that  has  come  before  this  court. 
In  Gorton  v.  Brown,  27  111.  489,  81  Am.  Dec.  245,  it  was  held  that 
an  action  could  not  be  maintained  for  maliciously  suing  out  a  writ 
of  injunction.  The  conclusion  reached  in  that  case,  however,  was 
based  mainly  upon  the  ground  that  the  party  had  a  sufficient  remedy 
upon  the  injunction  bond  given  when  the  injunction  was  obtained, 
and  that  such  bond  was  designed  by  the  statute  to  cover  the  dam- 
ages suffered  by  the  party  enjoined.  But  the  drift  of  the  opinion 
in  that  case  was  against  the  maintenance  of  an  action  for  malicious 
prosecution  without  probable  cause  of  an  ordinary  civil  suit,  unac- 
companied by  arrest  or  seizure  of  property.  In  Gorton  v.  Brown, 
supra,  we  said  (page  493,  27  111.,  81  Am.  Dec.  245) :  "We  are  well 
aware  that  elementary  writers  and  respectable  courts  have  held  that 
an  action  on  the  case  will  lie  for  an  abuse  of  the  process  of  the  courts, 
where  special  damages  are  alleged,  and  against  a  party  for  prose- 
cuting a  causeless  action,  prompted  by  malice,  by  which  the  defend- 
ant has  sustained  some  injury,  for  which  he  has  no  other  recourse 
or  remedy.  Such  actions,  however,  for  the  most  part,  are  actions 
wherein  arrests  have  been  made,  and  bail  demanded,  or  the  party 
put  to  some  other  expense  and  inconvenience,  which  cannot  be  com- 
"pensated  in  any  other  mode  than  by  an  action.  Such  actions,  ex- 
cept where  a  malicious  arrest  is  charged,  are  not  favored  by  the 
courts,  and  ought  not  to  be;  for,  in  a  litigious  community,  every 
successful  defendant  would  bring  his  action  for  a  malicious  prose- 
cution, and  the  dockets  of  the  courts  would  be  crowded  with  such 


282  LAW  OF  TORTS. 

suits."  The  question  here  under  consideration  has  been  much  dis- 
cussed of  late  years  in  legal  periodicals  and  in  text-books,  as  well  as 
in  judicial  decisions  rendered  by  the  courts  in  many  of  the  states. 
We  have  examined  the  discussions  upon  this  subject  with  great  care, 
and  are  inclined  to  hold  in  accordance  with  the  intimation  made  in 
Gorton  v.  Brown,  supra,  that  such  actions  ought  not  to  be  maintained. 
An  able  discussion  of  this. subject,  and  an  extensive  review  of  the 
authorities  in  relation  thereto  down  to  the  year  1878,  may  be  found 
in  21  Amer.  Law  Reg.  pp.  281,  353.  The  articles  there  published 
were  written  by  Mr.  John  B.  Lawson.  After  his  review  of  the  cases, 
Mr.  Lawson  announces  it  as  his  own  opinion  "that,  while  the  weight 
of  authority  denies  the  action,  the  weight  of  reason  allows  it."  The 
conclusion  announced  by  the  author  of  these  articles  has  been  fol- 
lowed by  courts  of  last  resort  in  several  of  the  western  and  newly- 
created  states.  But,  as  the  weight  of  authority  denies  the  action, 
we,  as  a  court,  feel  it  our  duty  to  be  governed  by  the  weight  of 
authority,  rather  than  by  the  conclusion  of  any  law  writer,  however 
able  and  ingenious  his  reasoning  may  be.  The  learned  author  of 
the  article  on  "Malicious  Prosecution"  in  14  Am.  &  Eng.  Enc.  Law, 
beginning  on  page  32,  also  refers  to  and  states  the  substance  of  the 
cases  on  both  sides  of  the  question.  It  is  there  said :  "At  common 
law  the  defendant  in  an  action  maliciously  brought  without  probable 
cause  has  a  right  of  action  against  the  plaintiff  in  such  action  after 
its  termination  in  favor  of  such  defendant,  and  this  regardless  of 
whether  the  plaintiff  had  interfered  with  either  the  person  or  prop- 
erty of  the  defendant.  But,  after  the  enactment  of  the  statute  of 
Marlbridge,  in  the  fifty-second  year  of  Henry  III.,  giving  costs  to 
successful  defendants  by  way  of  damage  against  the  plaintiff  pro 
falso  clamore,  it  came  to  be  held  that  an  action  for  malicious  prose- 
cution would  not  lie  in  civil  actions,  unless  in  cases  where  there  had 
been  arrest  of  the  person,  or  seizure  of  property,  or  other  special 
injury,  which  would  not  necessarily  result  in  all  suits  prosecuted  to 
recover  for  like  causes  of  action.  And  this  is  the  rule  adopted  by 
some  of  the  courts  of  this  country.  The  contrary  rule,  adopted  by 
courts  equal  in  number  and  respectability,  is  that  an  action  can  be 
maintained,  where  neither  the  person  nor  the  property  was  seized, 
for  damages  accruing  in  suits  brought  maliciously  and  without  prob- 
able cause."  We  prefer  to  adopt,  as  the  sounder  rule,  the  rule  first 
stated  in  the  passage  last  above  quoted.  We  are  of  the  opinion, 
and  so  .hold,  that  an  action  for  the  malicious  prosecution  of  a  civil 
suit  without  probable  cause  will  not  lie  where  the  process  in  the 
suit  so  prosecuted  is  by  summons  only,  and  is  not  accompanied  by 
arrest  of  the  person,  or  seizure  of  the  property,  or  other  special  in- 
jury not  necessarily  resulting  in  all  suits  prosecuted  to  recover  for 
like  causes  of  action.  This  conclusion  is  sustained  by  the  following 
authorities,  to  wit:  Potts  v.  Imlay,  4  N.  J.  Law,  330,  7  Am.  Dec. 


MALICIOUS  PROSECUTION.  283 

603 ;  Bitz  v.  Meyer,  40  N.  J.  Law,  252,  29  Am.  Rep.  233 ;  Muldoon 
v.  Rickey,  103  Pa.  no,  49  Am.  Rep.  117;  Kramer  v.  Stock,  10  Watts, 
115.;  Eberly  v.  Rupp,  90  Pa.  259;  Mayer  v.  Walter,  64  Pa.  283; 
Wetmore  v.  Mellinger,  64  Iowa,  741,  18  N.  W.  870,  52  Am.  Rep. 
465;  Smith  v.  Hintrager,  67  Iowa,  109,  24  N.  W.  744;  McNamee 
v.  Minke,  49  Md.  122;  Supreme  Lodge  v.  Unverzagt,  76  Md.  104, 
24  Atl.  323;  Terry  v.  Davis,  114  N.  C.  31,  18  S.  E.  943;  Ely  v. 
Davis,  in  N.  C.  24,  15  S.  E.  878;  Mitchell  v.  Railroad  Co.,  75  Ga. 
398;  Newell,  Mai.  Pros.  §  32.  Those  who  favor  the  doctrine  that 
the  courts  ought  to  permit  suits  of  this  character  to  be  brought  and 
prosecuted  urge  in  support  of  it  the  common-law  maxim  that  for 
every  wrong  the  law  furnishes  a  remedy.  It  is  said  that,  when  a 
civil  suit  is  maliciously  prosecuted  without  probable  cause,  the  de- 
fendant undergoes  expenses,  and  suffers  injury  from  loss  of  time, 
and  often  from  loss  of  credit,  and  that  these  wrongs  he  must  endure 
without  a  remedy,  if  he  cannot  bring  suit  for  damages  for  the  prose- 
cution of  such  malicious  action.  On  the  other  hand,  it  must  be 
remembered  that  the  courts  are  open  to  every  citizen;  and  every 
man  has  a  right  to  come  into  a  court  of  justice,  and  claim  what  he 
deems  to  be  his  right,  without  fear  of  being  prosecuted  for  heavy 
damages.  If  such  actions  are  allowed,  it  might  oftentimes  happen 
that  an  honest  suitor  would  be  deterred  from  ascertaining  his  legal 
rights,  through  fear  of  being  obliged  to  defend  a  subsequent  suit 
charging  him  with  malicious  prosecution. 

It  is  urged  that  the  costs  which  are  awarded  to  the  successful  de- 
fendant in  a  civil  suit,  malicious  in  its  character,  and  brought  against 
him  without  probable  cause,  are  inadequate  compensation  for  the 
injury  which  he  suffers.  But  the  question  of  the  amount  of  costs 
which  are  to  be  allowed  the  successful  party  is  a  question  to  be  de- 
termined by  the  legislature,  and  not  by  the  courts.  As  was  said  by 
Chief  Justice  Kirkpatrick  in  Potts  v.  Imlay,  supra :  "The  courts  of 
law  are  open  to  every  citizen,  and  he  may  sue  toties  quoties  upon 
the  penalty  of  lawful  costs  only.  These  are  considered  as  a  suffi- 
cient compensation  for  the  mere  expenses  of  the  defendant  in  his 
defense.  They  are  given  to  him  for  this  purpose,  and  he  cannot 
rise  up  in  a  court  of  justice,  and  say  the  legislature  has  not  given 
him  enough.  If  we  were  legislators,  indeed,  perhaps  we  should  be 
inclined  to  say  that  the  costs,  in  all  cases  where  costs  are  given, 
should  completely  indemnify  the  party  for  all  his  necessary  expenses, 
both  of  time  and  money ;  but  those  to  whom  this  high  trust  is  com- 
mitted in  this  state  have  thought,  and,  we  will  presume,  have  wisely 
thought,  otherwise."  Such  ordinary  trouble  and  expense  as  arise 
from  the  ordinary  forms  of  legal  controversy  should  be  endured  by 
the  law-abiding  citizen  as  one  of  the  inevitable  burdens  which  men 
must  sustain  under  civil  government.  Muldoon  v.  Rickey,  supra. 


1>84  LAW  OP  TORTS. 

Those  who  favor  this  species  of  action  also  claim  that,  if  the  courts 
refuse  to  allow  such  actions  to  be  maintained,  litigation  will  be  en- 
couraged, and  causeless  and  unfounded  civil  suits  will  be  apt  to  be 
brought.  On  the  contrary,  the  danger  is  that  litigation  will  be  pro- 
moted and  encouraged  by  permitting  such  suits  as  the  present  action 
to  be  brought.  This  is  so,  because  the  conclusion  of  one  suit  would 
be  but  the  beginning  of  another.  A  defendant  who  had  secured  a 
favorable  result  in  the  suit  against  him  would  be  tempted  to  bring 
another  suit  for  the  purpose  of  showing  that  there  had  been  malice 
and  want  of  probable  cause  in  the  prosecution  of  the  first  suit  which 
he  had  won.  Litigation  would  thus  become  interminable.  Every 
unsuccessful  action  would  be  apt  to  be  followed  by  another  alleging 
malice  in  the  prosecution  of  the  former  action.  There  would  thus 
be  substantially  a  trial  of  every  lawsuit  twice  instead  of  once,  be- 
cause, in  order  to  show  that  the  first  suit  was  malicious  and  with- 
out probable  cause,  it  would  be  necessary  to  go  over  again  the  ma- 
terial facts  that  had  been  developed  by  the  proof  in  such  suit.  Again, 
if  every  successful  defendant  should  be  encouraged  to  bring  an  ac- 
tion against  the  defeated  plaintiff  for  the  malicious  prosecution  with- 
out probable  cause  of  an  ordinary  civil  suit,  such  defendant  would 
be  careless  and  extravagant  in  the  matter  of  the  cost  of  the  defense 
made  by  him.  It  would  be  a  matter  of  little  importance  to  the 
successful  defendant  whether  his  contract  with  his  attorney  for  the 
latter's  professional  services  provided  for  extravagant  or  reasonable 
fees,  if  he  could  turn  around  at  once  and  recover  from  the  defeated 
plaintiff  whatever  he  had  expended.  His  expenses  and  trouble  and 
loss  of  time  and  credit  would  assume  larger  proportions,  and  would 
be  regarded  as  heavier  burdens,  if  he  knew  that  he  was  to  be  reim- 
bursed for  such  outlay  from  the  property  of  his  adversary.  In  ad- 
dition to  this,  there  is  no  reason  why  a  plaintiff  may  not  bring  an 
action  against  a  defendant  who  has  made  a  groundless  and  cause- 
less defense,  if  the  defendant  may  sue  for  damages  which  he  has 
suffered  for  an  unfounded  prosecution.  For  the  reasons  stated,  we 
are  of  the  opinion  that  the  court  below  committed  no  error  in  in- 
structing the  jury  to  find  for  the  defendant  below  (the  defendant  in 
error  here).  Accordingly  the  judgment  of  the  appellate  court,  af- 
firming the  judgment  of  the  circuit  court,  is  affirmed.  Judgment 
affirmed. 

(The  states  of  this  country  are  about  equally  divided  on  this  question.  Re- 
cent cases  in  accord  with  the  above  decision  are  Bonney  v.  King,  201  111.  47, 
66  N.  E.  377 ;  Muldoon  v.  Rickey,  103  Pa.  110,  49  Am.  Rep.  117 ;  Paul  v.  Fargo, 
84  App.  Div.  9,  82  N.  Y.  Supp.  369;  cf.  Willard  v.  Holmes,  142  N.  Y.  492,  37 
N.  E.  480.  Numerous  other  decisions  to  the  same  effect  are  cited  in  the  next 
case,  post,  p.  285.) 


MALICIOUS  PROSECUTION.  285 

(114  Fed.  377.) 

WADE  v.  NATIONAL  BANK  OF  COMMERCE  OF  TACOMA  et  al. 
(Circuit  Court,  D.  Washington,  W.  D.     March  21,  1902.) 

MALICIOUS  PROSECUTION  OF  CIVIL  ACTION. 

Action  will  lie  to  recover  for  injuries  to  reputation  and  business  caused 
by  malicious  prosecution  of  a  civil  action  without  probable  cause,  in  which 
a  complaint  was  filed  containing  false  and  defamatory  matter,  though 
there  has  been  no  arrest  or  detention  of  the  plaintiff,  nor  seizure  of  or 
interference  with  his  property  by  any  form  of  process. 

At  Law.  Action  to  recover  damages  for  alleged  malicious  prose- 
cution of  a  civil  action,  in  which  the  pleadings  contained  slanderous 
accusations,  injurious  to  the  present  plaintiff.  Demurrer  to  com- 
plaint overruled. 

HANFORD,  District  Judge.  The  demurrer  to  the  complaint  in 
this  case  raises  the  question  whether  an  action  can  be  maintained  to 
recover  damages  for  injuries  to  the  plaintiff's  reputation  and  business 
caused  by  the  malicious  prosecution  of  a  civil  action  without  prob- 
able cause,  in  which  a  complaint  was  filed  containing  false  and  de- 
famatory matter;  there  having  been  in  said  action  no  arrest  or  de- 
tention of  the  plaintiff,  nor  seizure  of  or  interference  with  his  prop- 
erty by  any  form  of  process.  Upon  the  argument  the  demurrer  was 
well  supported  by  citations  from  text-books  and  adjudged  cases. 
Some  of  the  authorities  hold  that  it  is  contrary  to  public  policy  to 
permit  litigants  to  reverse  their  positions,  and  consume  the  time  of 
the  courts  in  a  mere  prolongation  of  disputes  which  have  been  once 
adjudicated.  Others  maintain  that  the  taxable  costs  recovered  by  a 
defendant  in  an  action  is  the  legal  measure  of  compensation  which 
he  may  claim  for  whatever  injuries  he  may  have  suffered  by  being 
compelled  to  appear  in  court  and  defend  an  action  prosecuted  wrong- 
fully; and  others 'hold  that  the  courts  of  justice  must  be  kept  open 
and  free  to  all  who  may  invoke  their  protection,  and  that  a  plaintiff 
who  submits  his  controversy  for  adjudication  to  a  lawfully  consti- 
tuted tribunal  should  not  be  subjected  to  the  peril  of  being  sued  for 
damages  if  he  fails  to  secure  a  judgment  in  his  favor.  By  other 
authorities  the  rule  is  established  that  the  allegations  of  a  pleading 
which  are  relevant  to  the  issue  are  privileged,  in  the  sense  that,  al- 
though defamatory  and  false,  an  injured  person  cannot  maintain  an 
action  to  recover  compensation  for  any  injury  caused  thereby.  On 
these  several  grounds,  and  upon  the  authorities  referred  to,  the 
defendants  contend  that  this  action  cannot  be  maintained.  For  the 
sake  of  brevity  I  will  give  only  a  list  of  authorities  cited,  without 
arranging  them  with  reference  to  the  several  propositions  supported, 
or  commenting  thereon:  Wetmore  v.  Mellinger,  64  Iowa,  741,  18  N. 


286  LAW  OF  TORTS. 

W.  870,  52  Am.  Rep.  465;  McNamee  v.  Minke,  49  Md.  133;  Su- 
preme Lodge  v.  Unverzagt,  76  Md.  104,  24  Atl.  323 ;  Smith  v.  Buggy 
Co.,  175  111.  619,  51  N.  E.  569,  67  Am.  St.  Rep.  242;  Tribune  Co. 
v.  Bruck,  61  Ohio  St.  489,  56  N.  E.  198,  76  Am.  St.  Rep.  433 ;  Terry 
v.  Davis,  114  N.  C.  31,  18  S.  E.  943;  Ely  v.  Davis,  in  N.  C.  24, 
15  S.  E.  878;  Mayer  v.  Walter,  64  Pa.  283;  Mitchell  v.  Railroad 
Co.,  75  Ga.  398 ;  Bitz  v.  Meyer,  40  N.  J.  Law,  252,  29  Am.  Rep.  233 ; 
Potts  v.  Imlay,  4  N.  J.  Law,  377,  7  Am.  Dec.  603;  Rice  v.  Day,  34 
Neb.  loo,  51  N.  W.  464;  Commerce  Co.  v.  Levi,  21  Tex.  Civ.  App. 
109,  50  S.  W.  606;  Biering  v.  Bank,  69  Tex.  599,  7  S.  W.  90;  John- 
son v.  King,  64  Tex.  226;  Tunstall  v.  Clifton  (Tex.  Civ.  App.)  49 
S.  W.  244;  Eberly  v.  Ruff,  90  Pa.  259,  I  Am.  Lead.  Cas.  (4th  Ed.) 
210;  Willard  v.  Holmes,  Brook  &  Haydens  Co.,  142  N.  Y.  492,  37 
N.  E.  480;  Cooley,  Torts  (ist  Ed.)  188,  189;  Id.  (2d  Ed.)  217,  220; 
Crockery  Co.  v.  Haley,  6  Wash.  302,  33  Pac.  650,  36  Am.  St.  Rep. 
156;  Abbott  v.  Bank,  20  Wash.  552,  56  Pac.  376;  Id.,  175  U.  S. 
409,  20  Sup.  Ct.  153,  44  L.  Ed.  217;  Ray  v.  Law,  Fed.  Cas.  No. 
11,592;  Luby  v.  Bennett,  in  Wis.  613,  87  N.  W.  804,  56  L.  R.  A. 
261,  87  Am.  St.  Rep.  897. 

The  defendant  also  contended  that,  if  the  action  can  be  maintained, 
the  recovery  must  be  limited  to  the  amount  of  the  actual  pecuniary 
loss,  in  the  way  of  expenses  necessarily  incurred  in  defending  the 
former  suit,  over  and  above  the  taxable  costs  (Closson  v.  Staples,  42 
Vt.  209,  I  Am.  Rep.  316;  Eastin  v.  Bank,  66  Cal.  123,  4  Pac.  1106, 
56  Am.  Rep.  77;  Brown  v.  City  of  Cape  Girardeau,  90  Mo.  377,  2  S. 
W.  302,  59  Am.  Rep.  28;  19  Am.  &  Eng.  Enc.  Law  [2d  Ed.]  652^ 
and  that  as  the  complaint  alleges  expenditures  amounting  to  only 
$500,  and  no  greater  sum  can  be  recovered  in  any  event,  the  amount 
involved  is  not  sufficient  to  make  a  case  cognizable  in  this  court. 

On  the  main  question, — as  to  whether  the  action  will  lie  to  re- 
cover damages  for  injury  to  reputation  and  business  prospects,  there 
is  a  conflict  of  authorities;  and,  as  the  point  has  not  been  decided 
by  an  appellate  court  having  jurisdiction  to  review  the  decisions  of 
this  court,  it  is  necessary  to  consider  the  reasons  as  well  as  the 
authorities.  The  common  law  of  England,  so  far  as  it  is  applicable 
to  existing  conditions  in  this  country,  furnishes  the  rule  of  decision 
for  the  courts  in  this  state ;  and  by  the  ancient  common  law  cases 
of  this  nature  were  controlled  by  the  elementary  principle  that  a 
wrongful  act  causing  injury  entitled  the  injured  party  to  compen- 
sation in  money,  and  there  was  no  rule  barring  such  an  action  as 
this  on  any  theory  that  the  rights  of  an  individual  may  be  sacrificed 
out  of  regard  for  public  policy  or  convenience,  or  any  notion  that 
the  prosecution  of  an  action  in  bad  faith,  and  for  the  mere  purpose 
of  inflicting  an  injury,  is  a  matter  of  right  or  privilege.  The  first 
departure  from  this  rule  of  the  common  law  has  been  traced  to  an 
English  statute,  referred  to  in  the  books  as  the  "Statute  of  Marl- 


MALICIOUS  PROSECUTION.  287 

bridge"  (52  Hen.  III.),  which  gave  a  successful  defendant  the  right 
to  recover  damages  as  well  as  costs  in  the  original  action.  19  Am. 
&  Eng.  Enc.  Law  (2d  Ed.)  652.  There  being  no  statute  or  rule  of 
practice  in  this  state  "by  which  a  defendant  can  claim  damages  for 
malicious  prosecution  without  bringing  an  independent  action,  we 
are  not  required  to  blindly  follow  English  decisions  based  upon  the 
statute  of  Marlbridge.  All  the  arguments  which  may  be  drawn  from 
the  public  policy  idea,  and  from  consideration  of  the  evil  conse- 
quences which  may  result  from  making  one  lawsuit  the  foundation 
for  another,  are  proper  only  for  consideration  of  the  legislature. 
The  courts  are  not  authorized  to  create  rules  changing  the  law  and 
denying  substantial  rights  for  any  such  reasons.  The  gravamen  of 
the  wrong  charged  against  the  defendants  is  their  bad  faith,  in  mis- 
using judicial  process,  intentionally,  to  oppress  and  injure  the  plain- 
tiff; and  I  am  unable  to  accept  as  a  right  principle  the  propositior 
that  to  employ  the  judicial  power  of  the  government  as  an  instru- 
ment to  inflict  a  wanton  injury  is  any  man's  privilege.  It  is  my 
opinion  that  the  true  doctrine  is  affirmed  in  the  text-books  and  de- 
cisions denying  that  a  case  such  as  this  must  be  excepted  from  the 
general  rule  making  a  wrongdoer  liable  for  damages  to  a  party  suf- 
fering injury  as  a  consequence  of  his  wrongful  act.  See  Cooper  v. 
Armour  (C.  C.)  42  Fed.  215,  8  L.  R.  A.  47,  and  cases  therein  cited; 
Newell,  Mai.  Pros.  §§  23,  24,  26,  28;  Eastin  v.  Bank,  66  Cal.  123, 
4  Pac.  1106;  Machine  Co.  v.  Willan,  63  Neb.  391,  88  N.  W.  497, 
56  L.  R.  A.  338,  93  Am.  St.  Rep.  449;  Kolka  v.  Jones,  6  N.  D.  461, 
71  N.  W.  558,  66  Am.  St.  Rep.  615. 
Demurrer  overruled. 

(The  following  cases  support  this  doctrine:  McCardle  v.  McGinley,  86  Ind. 
538,  44  Am.  Rep.  343;  Brand  v  Hinchman,  68  Mich.  590.  36  N.  W.  664,  13  Am. 
St.  Rep.  362;  Eickhoff  v.  Fidelity  Co.,  74  Minn.  139,  76  N.  W.  1030;  Whipple 
v.  Fuller,  11  Conn.  582,  29  Am.  Dec.  330;  Smith  v.  Burrus,  106  Mo.  94,  16  S. 
W.  881,  13  L.  R.  A.  59,  27  Am.  St.  Rep.  329.) 


Malicious    attachment   in   civil   action. 

(154  Mass.  1,  27  N.  E.  772,  12  L.  R.  A.  288.) 

ZINN  v.  RICE. 
(Supreme  Judicial  Court  of  Massachusetts.     Suffolk.     May  20,  1891.) 

WRONGFUL  ATTACHMENT— TEBMINATION  OF  ACTION  NOT  NECESSARY. 

An  action  for  maliciously  suing  out  an  excessive  attachment  may  be 
brought  before  the  termination  of  the  attachment  suit,  and  even  though 
the  plaintiff  in  said  suit  has  a  good  cause  of  action,  and  there  is  uo  de- 
fense thereto,  and  the  suit  could  not  terminate  in  favor  of  defendant 


288  LAW  OF  TORTS. 

therein.  The  grievance  Is  that  said  plaintiff,  having  a  just  cause  of  action, 
made  an  excessive  attachment  of  property,  not  for  the  purpose  of  securing 
his  debt,  but  for  the  purpose  of  injuring  said  defendant 

Exceptions  from  Superior  Court,  Suffolk  County;  John  Lathrop, 
Judge. 

Action  for  maliciously  suing  out  an  excessive  attachment.  Plaintiff 
was  nonsuited  on  the  ground  that  his  action  was  prematurely 
brought,  and  excepts.  Exceptions  sustained. 

W.  ALLEN,  J.  It  is  not  contended  that  the  facts  alleged  in  the 
declaration,  and  offered  to  be  proved  at  the  trial,  are  not  sufficient 
to  sustain  an  action  by  the  plaintiff  against  the  defendant.  The  de- 
fendant's contention  is  that  the  action  is  prematurely  brought;  that 
it  is  an  action  for  malicious  prosecution,  and  subject  to  the  rule 
that  a  suit  for  malicious  prosecution  cannot  be  maintained  until  the 
prosecution  has  terminated  in  favor  of  the  plaintiff.  But  the  rule 
applies  only  to  suits  for  maliciously  instituting  groundless  prose- 
cutions, and  does  not  apply  to  the  injurious  and  malicious  use  of 
process  in  proceedings  which  were  commenced  with  probable  cause. 
The  latter,  being  for  the  malicious  use  of  legal  process  by  acts  au- 
thorized by  its  terms,  may  be  called  "actions  for  malicious  prosecu- 
tion," to  distinguish  them  from  actions  for  the  abuse  of  process  by 
doing  under  color  of  legal  process  acts  not  authorized  by  it;  but 
there  is  no  rule  of  law  that  in  such  an  action  the  termination  of  any 
former  suit  must  be  shown.  The  rule  is  founded  on  the  necessity 
of  proving  that  a  prosecution  which  itself  puts  in  issue  the  truth  of 
the  charge  on  which  it  is  founded  is  without  probable  cause.  A 
defendant  in  such  an  action  cannot  bring  another  action  to  try  the 
issue  tendered  him  in  the  first  while  that  issue  is  pending.  The  rule 
is,  by  its  terms  and  nature,  limited  to  a  prosecution  to  establish  a 
charge  or  cause  of  action,  and  cannot  include  an  ex  parte  use  of 
process  incidental  and  collateral  to  such  a  prosecution,  and  in  de- 
fense to  which  falsity  of  the  charge  cannot  be  shown.  Parker  v. 
Langly,  10  Mod.  209;  Fortman  v.  Rottier,  8  Ohio  St.  548,  70  Am. 
Dec.  606;  Bump  v.  Betts,  19  Wend.  421;  Barnett  v.  Reed,  51  Pa. 
190,  88  Am.  Dec.  574;  Jenings  v.  Florence,  2  C.  B.  (N.  S.)  467; 
Churchill  v.  Siggers,  3  El.  &  Bl.  929 ;  Wentworth  v. '  Bullen,  9  Barn. 
&  C.  840;  Wood  v.  Graves,  144  Mass.  365,  n  N.  E.  567,  59  Am. 
Rep.  95;  Everett  v.  Henderson,  146  Mass.  89,  14  N.  E.  932,  4  Am. 
St.  Rep.  284;  Savage  v.  Brewer,  16  Pick.  453,  28  Am.  Dec.  255; 
Bicknell  v.  Dorion,  16  Pick.  478.  In  the  case  at  bar  the  grievance 
of  the  plaintiff  is  not  that  the  defendant  maliciously  commenced  a 
groundless  suit.  He  admits  that  the  plaintiff  had  a  good  cause  of 
action,  and  that  there  is  no  defense  to  the  suit,  and  that  its  termina- 
tion cannot  be  in  his  favor.  Nor  is  his  grievance  that  the  defendant 
abused  the  process  in  the  former  suit,  and,  under  color  of  it,  did 


MALICIOUS  PROSECUTION.  289 

things  not  authorized  by  its  terms.  His  grievance  is  that  the  de- 
fendant, having  a  just  cause  of  action,  and  a  legal  suit  against  this 
plaintiff,  made  an  excessive  attachment  of  property,  which  he  knew 
was  not  needed  for  the  security  of  his  debt,  not  for  the  purpose  of 
securing  his  debt,  but  for  the  purpose  of  injuring  the  plaintiff.  If 
the  plaintiff  has  any  right  of  action,  which  is  not  controverted,  it  is 
idle  to  say  that  he  must  wait  until  the  former  action  has  terminated 
in  his  favor. 

The  defendant  contends  that  the  amount  of  the  debt  must  be  fixed 
by  the  determination  of  the  former  suit,  and  that  it  cannot  be  shown 
in  this  suit.  We  know  of  no  authority  or  reason  for  this.  The 
amount  of  the  debt  cannot  exceed  the  amount  declared  for  in  the 
suit,  and  that  is  admitted  to  be  due,  so  far  certainly  as  affects  this 
suit.  Beyond  that  there  is  no  question  in  the  former  suit,  and  no 
issue,  and  the  proceedings  complained  of  were  ex  parte,  and  they 
were  terminated  by  the  reduction  of  the  attachment.  It  is  argued 
that  the  plaintiff  in  that  suit  may  amend  his  declaration,  and  intro- 
duce a  new  cause  of  action.  That  case,  as  stated  by  the  plaintiff 
himself,  does  not  present  any  issue  involved  in  the  case  at  bar,  and 
the  possibility  that  a  new  cause  of  action  may  be  added,  if  it  existed, 
would  not  be  sufficient  to  show  that  the  issues  presented  in  this  case 
are  pending  in  that,  or  to  bring  it  within  the  terms  or  reason  of 
the  rule  that  the  liability  of  this  plaintiff  to  such  possible  cause  of 
action  can  be  tried  only  in  that  action.  Exceptions  sustained. 

(See  also  Alsop  v.  Lidden,  130  Ala.  548,  30  South.  401;  Talbott  v.  Great 
Western  Plaster  Co.,  86  Mo.  App.  558;  LeClear  v.  Perkins,  103  Mich.  131.  61 
N.  W.  357.  26  L.  R.  A.  627.  The  same  rule  applies  in  cases  where  an  ex  /xrrtf 
order  or  warrant  of  arrest  is  obtained.  Mayer  v.  Walter,  64  Pa.  283;  Hyde 
v.  Greucli,  62  Md.  577;  Steward  v.  Gromett,  7  C.  B.  [N.  S.]  191.) 


Malicious  abuse  of  process. 

(4  Bing.  N.  C.  212.) 
GRAINGER  v.  HILL  et  al. 

(Court  of  Common  Pleas.     January  20,  1838.) 

1.  ABUSE  OF  PBOCESS — ARREST. 

Sheriff's  officers,  having  a  writ  for  the  arrest  of  plaintiff  in  an  action 
brought  by  defendants  against  him,  came  to  plaintiff,  who  was  ill  in  bed, 
and  told  him  that,  unless  he  would  deliver  up  a  certain  document  or  find 
bail,  they  must  either  take  him  or  leave  a  man  with  him.  Held,  that  this 
was  a  sufficient  restraint  on  plaintiff's  person,  without  actual  contact,  to 
amount  to  an  arrest,  which  would  sustain  an  action  by  plaintiff  for  a  ma- 
licious abuse  of  the  process;  and  that  defendants,  having  repaid  to  plain- 
tiff, on  a  settlement  between  them,  the  caption  fee  charged  to  him  by  the 
officers,  thereby  admitted  the  propriety  of  such  charge. 

CHASE  (2o  ED.) — 19 


290  LAW  OP  TORTS. 

2.  SAME — TERMINATION  OF  PROCEEDING — WANT  OF  PROBABLE  CAUSE. 

In  an  action  for  abusing  the  process  of  the  court  in  order  illegally  to 
compel  a  party  to  give  up  his  property,  it  is  not  necessary  to  prove  that 
the  action  in  which  the  process  was  improperly  employed  has  been  de- 
termined, or  to  aver  that  the  process  was  sued  out  without  reasonable  or 
probable  cause. 

Motions  for  entry  of  nonsuit  instead  of  verdict  for  plaintiff,  and 
in  arrest  of  judgment. 

Action  on  the  case  by  Grainger  against  Hill  and  another.  De- 
fendants pleaded  the  general  issue.  At  the  trial  it  appeared  that 
in  September,  1836,  plaintiff,  by  deed,  mortgaged  to  defendants  for 
£80,  being  money  loaned  by  them  to  him,  a  vessel  of  which  he  was 
owner  and  master.  The  money  was  to  be  repaid  in  September, 
1837;  and  plaintiff  was  to  retain  the  register  of  the  vessel  in  order 
to  pursue  his  voyages.  In  November,  1836,  defendants,  under  some 
apprehension  as  to  the  sufficiency  of  their  security,  resolved  to  pos- 
sess themselves  of  the  ship's  register;  and  for  this  purpose,  after 
threatening  to  arrest  the  plaintiff  unless  he  paid  the  money,  they 
made  an  affidavit  of  debt,  sued  out  a  capias  indorsed  for  bail  in  the 
sum  of  £95.  175.  6d.  in  an  action  of  assumpsit,  and  sent  two  sheriff's 
officers  with  the  writ  to  plaintiff,  who  was  lying  ill  in  bed  from  the 
effects  of  a  wound.  A  surgeon  present  perceiving  he  could  not  be 
removed,  one  of  the  defendants  said  to  the  sheriff's  officers,  "Don't 
take  him  away;  leave  the  young  man  with  him."  The  officers  then 
told  plaintiff  they  had  not  come  to  take  him,  but  to  get  the  ship's 
register;  but  that  if  he  failed  to  deliver  the  register,  or  to  find  bail, 
they  must  either  take  him  or  leave  one  of  the  officers  with  him. 
Plaintiff,  being  unable  to  procure  bail,  and  being  much  alarmed,  gave 
up  the  register.  Plaintiff  afterwards  came  to  an  arrangement  with 
defendants ;  was  discharged  from  the  arrest ;  repaid  the  money  bor- 
rowed on  mortgage ;  and  received  from  defendants  a  release  of  the 
mortgage  deed.  No  further  steps  were  taken  in  the  action  of  as- 
sumpsit. Upon  this  arrangement,  a  caption  fee  which  had  been 
charged  and  paid  by  plaintiff  to  the  sheriff's  officers  was  repaid  by  de- 
fendants to  plaintiff.  The  jury  found  a  verdict  for  plaintiff.  Coun- 
sel for  defendants,  pursuant  to  leave,  moved  to  enter  a  nonsuit  in- 
stead of  the  verdict,  and  also  moved  in  arrest  of  judgment,  and 
obtained  a  rule  to  show  cause. 

TINDAL,  C.  J.  This  is  a  special  action  on  the  case,  in  which 
the  plaintiff  declares  that  he  was  the  master  and  owner  of  a  vessel 
which,  in  September,  1836,  he  mortgaged  to  the  defendants  for  the 
sum  of  £80,  with  a  covenant  for  repayment  in  September,  1837,  and 
under  a  stipulation  that,  in  the  meantime,  the  plaintiff  should  retain 
command  of  the  vessel,  and  prosecute  voyages  therein  for  his  own 
profit ;  that  the  defendants,  in  order  to  compel  the  plaintiff,  through 


MALICIOUS  PROSECUTION.  291 

duress,  to  give  up  the  register  of  the  vessel,  without  which  he  could 
not  go  to  sea,  before  the  money  lent  on  mortgage  became  due, 
threatened  to  arrest  him  for  the  same  unless  he  immediately  paid 
the  amount ;  that,  upon  the  plaintiff  refusing  to  pay  it,  the  defend- 
ants, knowing  he  could  not  provide  bail,  arrested  him  under  a  capias, 
indorsed  to  levy  £95.  173.  6d.,  and  kept  him  imprisoned  until,  by  du- 
ress, he  was  compelled  to  give  up  the  register,  which  the  defendants 
then  unlawfully  detained,  by  means  whereof  the  plaintiff  lost  four 
voyages  from  London  to  Caen.  There  is  also  a  count  in  trover  for 
the  register.  The  defendants  pleaded  the  general  issue;  and,  after 
a  verdict  for  the  plaintiff,  the  case  comes  before  us  on  a  double 
ground, — under  an  application  for  a  nonsuit,  and  in  arrest  of  judg- 
ment. 

The  first  ground  urged  for  a  nonsuit  is  that  the  facts  proved  with 
respect  to  the  writ  of  capias  do  not  amount  to  an  arrest.  It  appears 
to  me  that  the  arrest  was  sufficiently  established.  The  facts  are  that 
the  sheriff's  officer  comes  with  a  capias  to  the  plaintiff,  when  he  is 
ill  in  bed,  and  tells  him  that,  unless  he  delivers  the  register  or  finds 
bail,  he  must  either  take  him  or  leave  a  man  with  him.  Without 
actual  contact,  the  officer's  insisting  that  the  plaintiff  should  produce 
the  register,  or  find  bail,  shows  that  the  plaintiff  was  in  a  situation 
in  which  bail  was  to  be  procured.  That  was  a  sufficient  restraint 
upon  the  plaintiff's  person  to  amount  to  an  arrest.  The  authority 
in  Buller's  Nisi  Prius,  p.  62,  goes  the  full  length:  "If  the  bailiff, 
who  has  a  process  against  one,  says  to  him,  when  he  is  on  horse- 
back or  in  a  coach,  'You  are  my  prisoner;  I  have  a  writ  against 
you,'  upon  which  he  submits,  turns  back,  or  goes  with  him,  though 
the  bailiff  never  touched  him,  yet  it  is  an  arrest,  because  he  sub- 
mitted to  the  process."  But  the  matter  does  not  rest  there;  for, 
upon  the  suit  being  arranged,  a  caption  fee,  which  had  been  charged 
by  the  officer  to  the  plaintiff,  was  repaid  to  him  by  the  defendants, 
who  thereby  admit  the  propriety  of  the  charge. 

The  second  ground  urged  for  a  nonsuit  is  that  there  was  no  proof 
of  the  suit  commenced  by  the  defendants  having  been  terminated. 
But  the  answer  to  this,  and  to  the  objection  urged  in  arrest  of  judg- 
ment, namely,  the  omission  to  allege  want  of  reasonable  and  prob- 
able cause  for  the  defendants'  proceeding,  is  the  same :  that  this 
is  an  action  for  abusing  the  process  of  the  law  by  applying  it  to 
extort  property  from  the  plaintiff,  and  not  an  action  for  a  malicious 
arrest  or  malicious  prosecution,  in  order  to  support  which  action 
the  termination  of  the  previous  proceeding  must  be  proved,  and  the 
absence  of  reasonable  and  probable  cause  be  alleged  as  well  as 
proved.  In  the  case  of  a  malicious  arrest,  the  sheriff,  at  least,  is 
instructed  to  pursue  the  exigency  of  the  writ.  Here  the  directions 
given,  to  compel  the  plaintiff  to  yield  up  the  register,  were  no  part 
of  the  duty  enjoined  by  the  writ.  If  the  course  pursued  by  the  de- 


292  LAW  OF  TORTS. 

fendants  is  such  that  there  is  no  precedent  of  a  similar  transaction, 
the  plaintiff's  remedy  is  by  an  action  on  the  case,  applicable  to  such 
new  and  special  circumstances,  and,  his  complaint  being  that  the 
process  of  the  law  has  been  abused  to  effect  an  object  not  within 
the  scope  of  the  process,  it  is  immaterial  whether  the  suit  which 
that  process  commenced  has  been  determined  or  not,  or  whether  or 
not  it  was  founded  on  reasonable  and  probable  cause. 

As  to  the  count  in  trover,  if  the  taking  of  the  register  was  wrong- 
ful, that  taking  was  of  itself  a  conversion,  and  no  demand  and  re- 
fusal were  necessary  as  a  preliminary  to  this  action.  It  seems  to 
me  that  taking  the  property  of  another  without  his  consent,  by  an 
abuse  of  the  process  of  the  law,  must  be  deemed  a  wrongful  taking, 
and  therefore  this  rule  must  be  discharged. 

PARK,  VAUGHAN,  and  BOSANQUET,  JJ.,  concurred. 

(See  also  Wood  v.  Graves,  144  Mass.  365,  11  N.  E.  5G7,  59  Am.  Rep.  95; 
Page  v.  Gushing,  38  Me.  523;  Bebinger  v.  Sweet,  1  Abb.  N.  C.  263;  Foy  v. 
Barry,  87  App.  Div.  291,  84  N.  Y.  Supp.  335;  Kline  v.  Hibbard.  80  Hun.  50, 
29  N.  Y.  Supp.  807.  affirmed  155  N.  Y.  679,  49  N.  E.  1099;  Norcross  v.  Otis 
Bros.,  152  Pa.  481,  25  Atl.  575,  34  Am.  St.  Rep.  669.) 


(181  Mass.  339,  63  N.  E.  885.) 

WHITE  v.  APSLEY  RUBBER  CO. 

(Supreme  Judicial  Court  of  Massachusetts.    Middlesex.    May  20,  1902.) 

1.  ABUSE  OF  PROCESS — TERMINATION  OF  PROSECUTION. 

That  a  criminal  prosecution  has  not  been  terminated  is  no  defense  to 
an  action  for  an  abuse  of  process  in  such  prosecution. 

2.  SAME. 

Where  one  is  arrested  under  a  criminal  warrant  upon  a  charge  of  ma- 
licious injury  to  personalty,  and  then  the  complainant  makes  use  of  the 
arrest  to  compel  the  person  arrested  to  abandon  a  claim  to  the  right  to 
occupy  a  certain  house  and  to  withdraw  from  its  occupation,  this  is  an 
abuse  of  process  for  which  an  action  will  lie,  though  the  prosecution  in 
which  the  warrant  was  obtained  has  not  been  terminated. 

Exceptions  from  Superior  Court ;   Caleb  Blodgett,  Judge. 

BARKER,  J.  It  is  conceded  that  criminal  proceedings  were  be- 
gun against  the  plaintiff  by  a  sworn  complaint,  made  to  a  trial  jus- 
tice, charging  that  the  plaintiff  had  willfully  and  maliciously  injured 
the  personal  property  of  the  defendant,  and  that  a  warrant  for  the 
plaintiff's  arrest  was  issued  upon  the  complaint,  and  placed  in  the 
hands  of  a  police  officer,  who  then  went  to  the  house  where  the 
plaintiff  was.  The  evidence  tended  to  show  that  the  plaintiff  was 


CONSPIRACY.  29S 

arrested  upon  this  warrant  at  the  house,  and  kept  under  arrest  for 
some  minutes,  during  which  he  went  with  the  officer  to  the  defend- 
ant's office,  and  then  returned  with  him  to  the  house,  and  that  he 
was  not  released  from  the  arrest  until  he  had  abandoned  a  claim 
to  the  right  to  occupy  the  house,  and  had  left  it,  finally  taking  away 
with  himself  his  wife  and  such  goods  of  his  own  as  were  in  the 
house  when  he  was  arrested.  The  evidence  also  tended  to  show 
that  defendant  caused  the  making  of  the  complaint  and  the  arrest, 
and  made  use  of  the  arrest  to  compel  the  plaintiff,  against  his  will, 
to  abandon  a  claim  to  the  right  to  occupy  the  house,  and  to  compel 
him  actually  to  withdraw  from  its  occupation.  The  warrant  has 
never  been  returned,  and  since  it  was  issued  there  has  been  no  ju- 
dicial action  upon  the  complaint.  The  fact  that  the  prosecution  has 
not  been  terminated  bars  any  recovery  upon  the  counts  for  malicious- 
prosecution.  Cardival  v.  Smith,  109  Mass.  158,  12  Am.  Rep.  682; 
Wood  v.  Graves,  144  Mass.  365,  366,  n  N.  E.  567,  59  Am.  Rep.  95. 
But  that  fact  is  not  a  defense  to  the  counts  for  abuse  of  process- 
Wood  v.  Graves,  ubi  supra.  A  misuse  of  the  warrant  and  the  arrest 
to  compel  him  to  quit  the  house  and  relinquish  his  claim  to  the 
right  to  its  occupancy  would  give  him  a  right  of  action. 
Exceptions  sustained. 


CONSPIRACY. 


(52  N.  J.  Law,  284,  20  Atl.  485,  10  L.  R.  A.  184.) 

VAN  HORN  et  al.  v.  VAN  HORN  et  al.  (in  part). 

(Supreme  Court  of  New  Jersey.    October  15,  1890.) 

1.  CONSPIBACT— CIVIL  ACTION  FOB. 

An  action  will  lie  for  a  combination  or  conspiracy  to  drive  a  trader  out 
of  business,  which  is  carried  into  effect  by  fraudulent  and  malicious  acts 
which  accomplish  that  result. 

2.  SAME. 

The  gravamen  in  actions  for  conspiracy  is  not  the  conspiracy  itself,  but 
the  wrongful  acts  and  injury  which  are  independent  thereof.  If  the  plain- 
tiff proves  the  conspiracy,  he  may  recover  against  all  the  co-tort-feasors ; 
if  he  fails  to  prove  it,  he  may  still  recover  against  such  as  are  shown  to 
be  guilty  of  the  tort  without  such  agreement 

Case  certified  from  circuit  court,  Essex  county ;  before  Justice  Depue, 

The  defendants,  Amos  H.  Van  Horn  and  Casper  Soer,  Jr.,  were 

summoned  to  answer  James  Van  Horn,  and  Emma  D.  Van  Horn, 


294  LAW  OF  TORTS. 

his  wife,  in  tort,  for  a  conspiracy  or  combination  to  break  up  the 
wife's  separate  business  of  selling  fancy  goods  on  consignment  at 
Newark.  Two  firms  of  wholesale  jobbers  in  fancy  and  millinery 
goods  had  agreed  verbally  to  supply  her  on  credit  with  a  stock  of 
such  goods,  to  be  sold  by  her  on  commission,  limiting  the  total 
amount  to  $2,500.  One  of  said  firms  had,  in  pursuance  of  the  agree- 
ment with  her,  sent  $500  worth  of  goods,  which  were  received  and 
placed  in  her  store  for  sale,  and  she  was  daily  expecting  the  balance. 
With  this  prefatory  statement,  the  declaration  charges  that  the  de- 
fendants, maliciously  intending  to  injure  and  drive  the  said  Emma 
D.  Van  Horn  out  of  business,  and  into  public  scandal,  shame,  and 
disgrace,  and  to  injure  her  in  her  credit  and  business,  and  to  prevent 
her  from  acquiring  any  profit  or  gain  therefrom,  or  from  continuing 
the  same,  did  maliciously  conspire,  combine,  and  agree  to  prevent 
her  from  enjoying  and  continuing  her  business,  and  in  pursuance  of 
said  conspiracy,  etc.,  did  entice  into  their  store  in  Newark  one  of  the 
plaintiff's  employees,  and  by  artful  persuasion  and  threats  induced 
her  to  tell  where  the  plaintiff's  stock  of  goods  was  purchased,  telling 
her  the  stock  would  be  taken  from  her,  and  the  business  closed  up ; 
and,  in  pursuance  and  in  further  performance  of  their  unlawful  in- 
tent and  combination,  endeavored  to  prevent  the  customers  and 
friends  of  the  plaintiff  from  dealing  with  her,  by  falsely  and  fraudu- 
lently representing  to  them  that  she  would  not  be  able  to  carry  on 
her  business,  but  would  have  to  close  up,  as  she  was  selling  goods 
that  did  not  belong  to  her,  and  living  off  the  proceeds,  instead  of 
accounting  therefor,  and  by  sending  threatening  notes  and  messages 
to  them,  designed  to  intimidate  them  from  having  any  dealings  with 
her,  and  did  threaten  to  pursue  her  until  she  was  ruined.  That  in 
further  pursuance  of  such  combination,  and  by  means  of  fraud  and 
deceit,  they  did  persuade  the  said  firm  in  New  York  to  decline  to 
complete  their  contract  and  did  prevail  on  them,  by  means  of  cor- 
rupt, fraudulent,  and  deceitful  representations  and  statements  as  to 
the  personal  and  business  character  and  standing  of  the  plaintiff, 
to  remove  the  stock  already  supplied  her,  and  refuse  to  deliver  her 
other  goods  as  agreed  for,  leaving  her  entirely  without  any  stock 
to  sell,  or  customers  to  purchase  from  her,  by  means  whereof  she 
was  left  without  stock  and  credit  with  the  said  firms,  and  could  not 
obtain  goods  from  other  parties,  and  was  driven  out  of  her  business 
and  occupation,  and  deprived  of  the  profit  and  livelihood  which  she 
was  making  and  daily  increasing.  To  this  declaration  a  general  de- 
murrer was  filed,  and  joinder  added. 

Argued  at  February  term,  1890,  before  BEASLEY,  C.  J.,  and 
DEPUE  and  SCUDDER,  JJ. 

SCUDDER,  J.    The  merely  formal  parts  of  this  declaration  will 
not  be  considered  on  the  general  demurrer,  but  the  whole  will  be 


CONSPIRACY.  295 

examined  to  determine  whether  it  sets  forth  in  substance  a  legal 
cause  of  action.  The  distinction  is  now  well  established  that  in 
civil  actions  the  conspiracy  is  not  the  gravamen  of  the  charge,  but 
may  be  both  pleaded  and  proved  as  aggravating  the  wrong  of  which 
the  plaintiff  complains,  and  enabling  him  to  recover  against  all  as 
joint  tort-feasors.  If  he  fails  in  the  proof  of  a  conspiracy  or  con- 
certed design,  he  may  still  recover  damages  against  such  as  are 
shown  to  be  guilty  of  the  tort  without  such  agreement.  Pollock  on 
Torts,  267;  Caring  v.  Fraser,  76  Me.  37;  Hutchins  v.  Hutchins,  7 
Hill,  104;  Jones  v.  Baker,  7  Cow.  445;  Parker  v.  Huntington,  2 
Gray,  124.  The  declaration  begins  in  this  form,  and  is  unexception- 
able in  this  particular.  It  is  an  action  on  the  case  setting  forth  a 
malicious  conspiracy  or  confederation,  with  the  means  employed  to 
effect  its  purpose,  and  the  resulting  damages  to  the  plaintiff.  No 
further  specification  is  required  than  the  general  terms  in  which  it  is 
pleaded  in  the  declaration. 

We  have  not  presented  for  determination  in  this  pleading  the 
vexed  question  whether  an  action  will  lie  against  a  third  person  for 
the  malicious  procurement  of  the  breach  of  a  contract,  if  by  such 
procurement  damage  was  intended  to  result  and  did  result  to  the 
plaintiff.  Lumley  v.  Gye,  2  El.  &  Bl.  216;  Bowen  v.  Hall,  6  Q.  B. 
Div.  333.  Here  the  whole  pleading  is  based  on  the  malicious  con- 
duct of  the  defendants  in  destroying  the  plaintiff's  credit  and  patron- 
age, and  breaking  up  her  business  and  means  of  livelihood.  The 
case  is,  however,  further  distinguished  from  the  cases  cited  above, 
and  separated  from  the  questions  of  difficulty  involved  in  some  of 
them,  because  here  no  breach  of  contract  is  alleged.  There  was  no 
binding  contract  between  the  New  York  firms  and  the  plaintiff  upon 
which  they  could  be  sued  for  a  breach.  Where  there  is  a  suable 
contract  between  a  contractor  and  contractee,  there  is  difficulty,  in 
principle,  in  showing  privity  in  another,  or  to  make  the  person  who 
procures  a  .breach  of  the  contract  the  proximate  cause  of  injury. 
The  party  who  breaks  the  contract,  for  whatever  cause,  whether  by 
procurement  of  others  or  of  his  own  volition,  is  primarily  responsible 
to  the  other  party;  and  the  procurer,  it  would  seem,  can  only  be 
held  responsible  for  the  breach  where  there  is  malice  shown  to  the 
sufferer,  giving  a  distinct  cause  of  action  for  the  malice  which  caused 
the  breach  of  the  contract  resulting  in  damages  to  him.  The  plain- 
tiff Emma  D.  Van  Horn,  it  is  alleged,  was  selling  goods  on  con- 
signment from  others,  with  the  expectation  of  greater  consignments 
in  the  future.  If  the  consignors  refuse  to  send  the  goods  to  her,  it 
does  not  appear  that  she  could  have  any  remedy  against  them.  They 
could  send  or  recall  them  at  pleasure.  The  complaint  here  is  that 
the  goods  in  the  plaintiff's  possession  were  recalled,  and  her  advan- 
tageous arrangement  for  credit  with  the  consignors  ended,  by  the 
fraudulent  and  malicious  act  of  the  defendants.  If  she  hav»  no 


.'296  LAW   OF   TORTS. 

remedy  against  the  defendants,  she  can  have  none  against  others 
for  the  wrong  which  she  claims  she  has  suffered.  The  difference 
between  this  action  and  slander  is  well  stated  in  Riding  v.  Smith, 
I  Exch.  Div.  91,  where  a  slander  against  the  wife  was  charged  as 
having  injured  the  husband's  business.  Her  name  was  stricken  from 
the  record  as  a  joint  plaintiff,  and  the  action  was  allowed  to  proceed 
by  the  husband,  as  a  trader  carrying  on  business,  founded  on  an 
act  done  by  the  defendant  which  led  to  the  loss  of  trade  and  custom 
by  the  plaintiff.  It  was  maintainable  on  the  ground  that  the  injury 
to  the  plaintiff's  business  was  the  natural  consequence  of  the  words 
spoken,  which  would  prevent  persons  resorting  to  the  plaintiff's 
shop.  Upon  the  whole  case  presented  in  the  declaration,  Mogul 
Steam-Ship  Co.  v.  McGregor,  21  Q.  B.  Div.  544,  23  Q.  B.  Div.  598, 
is  important  to  aid  in  preserving  the  distinction  between  injuries 
caused  by  mere  rivalries  in  business,  without  the  intention  of  ruin- 
ing the  trade  of  the  plaintiff,  and  those  where  such  intent  is  shown 
with  personal  malice  towards  him.  In  the  first  report,  Lord  Chief 
Justice  Coleridge  says:  "It  is  too  late  to  dispute,  if  I  desired  to 
do  so,  as  I  do  not,  that  a  wrongful  and  malicious  combination  to 
ruin  a  man  in  his  trade  may  be  ground  for  such  an  action  as  this." 
In  the  later  report  Lord  Justice  Fry,  after  a  full  statement  of  cases, 
says  that  no  mere  competition  carried  on  fo'r  the  purpose  of  gain, 
and  without  actual  malice,  is  actionable,  even  though  intended  to 
drive  the  rival  in  trade  away  from  his  place  of  business,  and  though 
that  intention  be  actually  carried  into  effect.  Lord  Esher,  M.  R., 
dissented.  It  was  decided  that  the  exclusion  of  the  plaintiffs,  rival 
freighters,  from  participation  in  a  5  per  cent,  rebate  on  freight  on 
teas  from  China,  not  being  through  malice,  but  in  competition  to 
increase  their  own  business,  was  not  actionable.1  The  basis  of 
action  seems  here  to  be,  as  stated  in  the  declaration,  the  fraudulent 
and  malicious  acts  of  the  defendants  in  driving  the  plaintiff  Emma 
D.  Van  Horn  out  of  her  business.  The  statements  of  the  means 
used  to  effect  this  purpose  all  combine  to  produce  a  single  cause 
of  action,  and  are  not  objectionable  for  duplicity. 
The  demurrer  should  be  overruled. 

(This  decision  was  affirmed  in  Van  Horn  v.  Van  Horn,  56  N.  J.  Law,  318, 
28  Atl.  669.  See  also  Wildee  v.  McKee,  111  Pa.  335,  2  Atl.  108,  56  Am.  Rep. 
271;  Findlay  v.  McAllister,  113  U.  S.  104,  5  Sup.  Ct.  401,  28  L.  Ed.  930; 
Rundell  v.  Kalbfus,  125  Pa.  123,  17  Atl.  238 ;  Brackett  v.  Griswold,  112  N.  Y. 
454,  20  N.  B.  376 ;  Train  v.  Taylor,  51  Hun,  215,  4  N.  Y.  Supp.  492 ;  Verplanck 
v.  Van  Buren,  76  N.  Y.  259;  Jackson  v.  Stf,nfield,  137  Ind.  592,  36  N.  E.  345, 
37  N.  E.  14,  23  L.  R.  A.  588 ;  Randall  v.  Hazelton,  12  Allen,  412,  414 ;  Huot 
v.  Wise,  27  Minn.  68,  6  N.  W.  425.  Conspiring  to  commit  a  tort  is  not  action- 
able, unless  a  wrong  is  done  and  damages  ensue.  Keit  v.  Wyman,  67  Hun, 
337,  22  N.  Y.  Supp.  133.) 

i  This  decision  was  affirmed  by  the  House  of  Lords.  Mogul  Steamship 
Co.  v.  McGregor  [1892]  A.  C.  25. 


CONSPIRACY.  297 

([1901]  App.  Cas.  495.) 

QUINN  v.  LEATHEM  (in  part). 

(Aug.  5,  1901.) 

CcmspiBACY— INDUCING  A  PERSON  TO  BREAK  His  CONTRACT  OB  NOT  TO  DEAL 
WITH  ANOTHER  OB  CONTINUE  IN  His  EMPLOYMENT. 

A  combination  of  two  or  more,  without  justification  or  excuse,  to  injure 
a  man  in  his  trade  by  inducing  his  customers  or  servants  to  break  their 
contracts  with  him,  or  not  to  deal  with  him  or  continue  in  his  employ- 
ment, is,  if  it  results  in  damage  to  him,  actionable. 

Action  by  Henry  Leathern  against  Joseph  Quinn  and  others,  offi- 
cers and  members  of  a  butchers'  association,  to  recover  for  inter- 
ference with  plaintiff's  business  of  a  butcher.  The  members  of  the 
association  adopted  a  rule  that  they  would  not  work  with  non-union 
men,  nor  would  they  cut  meat  that  came  from  a  place  where  non- 
union hands  were  employed.  Neither  plaintiff  nor  his  assistants. 
were  members  of  the  association.  Defendants  demanded  that  plain- 
tiff discharge  his  men,  and  employ  union  men  in  their  stead.  This 
having  been  refused,  defendants  induced  a  customer  of  plaintiff,  named 
Munce,  to  cease  dealing  with  plaintiff,  on  the  threat  that  unless  he  did  so 
defendants  would  instruct  such  customer's  employees  to  cease  work  im- 
mediately, on  the  arrival  of  plaintiff's  beef.  This  threat  was  afterwards 
carried  into  effect  by  the  defendants,  and  plaintiff  was  thus  deprived 
of  this  valuable  customer,  Munce,  who  had  taken  meat  from  him  for 
20  years.  Defendants  also  induced  plaintiff's  assistants  to  leave  his 
employ.  Defendants  further  caused  to  be  published  "black  lists"  con- 
taining the  names  of  plaintiff,  and  those  dealing  with  him,  holding 
them  up  to  odium,  and  thus  caused  customers  of  plaintiff  to  cease 
dealing  with  him.  The  jury  found  for  plaintiff.  From  a  judgment 
of  the  Irish  Court  of  Appeals,  affirming  a  decision  denying  a  motion 
to  set  aside  the  verdict  and  judgment,  or  in  the  alternative  for  a  new 
trial,  defendant  Quinn  appealed.  Appeal  dismissed. 

EARL  OF  HALSBURY,  L.  C.  My  Lords,  in  this  case  the 
plaintiff  has  by  a  properly  framed  statement  of  claim  complained  of 
the  defendants,  and  proved  to  the  satisfaction  of  a  jury  that  the 
defendants  have  wrongfully  and  maliciously  induced  customers  and 
servants  to  cease  to  deal  with  the  plaintiff,  that  the  defendants  did 
this  in  pursuance  of  a  conspiracy  framed  among  them,  that  in  pur- 
suance of  the  same  conspiracy  they  induced  servants  of  the  plaintiff 
not  to  continue  in  the  plaintiff's  employment,  and  that  all  this  was 
done  with  malice,  in  order  to  injure  the  plaintiff,  and  that  it  did  in- 
jure the  plaintiff.  If  upon  these  facts  so  found  the  plaintiff  could 
have  no  remedy  against  those  who  had  thus  injured  him,  it  could 
hardly  be  said  that  our  jurisprudence  was  that  of  a  civilized  com- 
munity, nor,  indeed,  do  I  understand  that  any  one  has  doubted  that 


J98  LAW  OF  TORTS. 

before  the  decision  in  Allen  v.  Flood  [1898]  A.  C.  I,  in  this  house, 
such  facts  would  have  established  a  cause  of  action  against  the  de- 
fendants. 

Now,  the  hypothesis  of  fact  upon  which  Allen  v.  Flood  was  de- 
cided by  a  majority  in  this  house  was  that  the  defendant  there 
neither  uttered  nor  carried  into  effect  any  threat  at  all ;  he  simply 
warned  the  plaintiff's  employers  of  what  the  men  themselves, 
without  his  persuasion  or  influence,  had  determined  to  do,  and 
it  was  certainly  proved  that  no  resolution  of  the  trade  union  had 
been  arrived  at  at  all,  and  that  the  trade  union  official  had  no  au- 
thority himself  to  call  out  the  men,  which  in  that  case  was  argued 
to  be  the  threat  which  coerced  the  employers  to  discharge  the  plain- 
tiff. It  was  further  an  element  in  the  decision  that  there  was  no 
case  of  conspiracy,  or  even  combination.  What  was  alleged  to  be 
done  was  only  the  independent  and  single  action  of  the  defendant, 
actuated  in  what  he  did  by  the  desire  to  express  his  own  views  in 
favor  of  his  fellow  members. 

Now,  in  this  case  it  cannot  be  denied  that,  if  the  verdict  stands, 
there  was  conspiracy,  threats,  and  threats  carried  into  execution,  so- 
that  loss  of  business  and  interference  with  the  plaintiff's  legal  rights 
are  abundantly  proved. 

This  case  is  distinguished  in  its  facts  from  those  which  were  the 
essentially  important  facts  in  Allen  v.  Flood.  Rightly  or  wrongly,  the 
theory  upon  which  judgment  was  pronounced  in  that  case  is  one 
whereby  the  present  is  shewn  to  be  one  which  the  majority  of  your 
Lordships  would  have  held  to  be  a  case  of  actionable  injury  inflicted 
without  any  excuse  whatever. 

My  Lords,  for  these  reasons  I  am  of  opinion  that  there  is  no 
difficulty  whatever  in  this  case,  and  I  move  that  this  appeal  be  dis- 
missed, with  costs. 

LORD  MACNAGHTEN.  My  Lords,  notwithstanding  the  strong 
language  of  the  late  O'Brien,  J.,  and  the  arguments  of  the  Lord  Chief 
Baron,  I  cannot  help  thinking  that  the  case  of  Allen  v.  Flood  [1898]  A. 
C.  i,  has  very  little  to  do  with  the  question  now  under  consideration. 
The  head-note  to  Allen  v.  Flood  might  well  have  run  in  words  used  by 
Parke,  B.,  in  giving  the  judgment  of  an  exceptionally  strong  court, 
nearly  half  a  century  ago  (Stevenson  v.  Newnham  [1853]  13  C.  B.  297) 
— "an  act  which  does  not  amount  to  a  legal  injury  cannot  be  actionable 
because  it  is  done  with  a  bad  intent."  That,  in  my  opinion,  is  the  sum 
and  substance  of  Allen  v.  Flood,  if  you  eliminate  all  matters  of  merely 
passing  interest. 

The  case  really  brought  under  review  on  this  appeal  is  Temperton 
v.  Russell  [1893]  i  Q-  B.  715.  I  cannot  distinguish  that  case  from 
the  present.  So  far  from  being  impugned  in  Allen  v.  Flood,  it 
had,  I  think,  the  approval  of  Lord  Watson,  whose  opinion  seems 


CONSPIRACY.  299 

to  me  to  represent  the  views  of  the  majority  better  far  than  any 
other  single  judgment  delivered  in  the  case.  Lord  Watson  says, 
[1898]  A.  C.  108,  that  he  did  not  think  it  necessary  to  notice  at 
length  Temperton  v.  Russell  [1893]  i  Q.  B.  715,  because  it  was 
to  his  mind  "very  doubtful  whether  in  that  case  there  was  any  ques- 
tion before^  the  court  with  regard  to  the  effect  of  the  animus  of  the 
actor  in  making  that  unlawful  which  would  otherwise  have  been 
lawful."  Then  he  goes  on  to  say:  "The  only  findings  of  the  jury 
which  the  court  had  to  consider  were  (i.)  that  the  defendants  had 
maliciously  induced  certain  persons  to  break  their  contracts  with 
the  plaintiffs,  and  (2.)  that  the  defendants  had  maliciously  conspired 
to  induce,  and  had  thereby  induced,  certain  persons  not  to  make 
contracts  with  the  plaintiffs.  There  having  been  undisputed  breaches 
of  contract  by  the  persons  found  to  have  been  induced,  the  first  of 
these  findings  raised  the  same  question  which  had  been  disposed  of 
in  Lumley  v.  Gye,  2  E.  &  B.  216.  According  to  the  second  finding 
the  persons  induced  merely  refused  to  make  contracts,  which  was 
not  a  legal  wrong  on  their  part,  but  the  defendants  who  induced 
were  found  to  have  accomplished  their  object  to  the  injury  of  the 
plaintiffs  by  means  of  unlawful  conspiracy — a  clear  ground  of  lia- 
bility, according  to  Lumley  v.  Gye,  2  E.  &  B.  216,  if,  as  the  court 
held,  there  was  evidence  to  prove  it" 

Obviously,  Lord  Watson  was  convinced  in  his  own  mind  that  a 
conspiracy  to  injure  might  give  rise  to  civil  liability,  even  though 
the  end  were  brought  about  by  conduct  and  acts  which  by  them- 
selves, and  apart  from  the  element  of  combination  or  concerted  ac- 
tion, could  not  be  regarded  as  a  legal  wrong. 

Precisely  the  same  questions  arise  in  this  case  as  arose  in  Temper- 
ton  v.  Russell  [1893]  i  Q.  B.  715.  The  answers,  I  think,  must  de- 
pend on  precisely  the  same  considerations.  Was  Lumley  v.  Gye,  2 
E.  &  B.  216,  rightly  decided?  Speaking  for  myself,  I  have  no 
hesitation  in  saying  that  I  think  the  decision  was  right,  not  on  the 
ground  of  malicious  intention — that  was  not,  I  think,  the  gist  of  the 
action — but  on  the  ground  that  a  violation  of  legal  right  committed 
knowingly  is  a  cause  of  action,  and  that  it  is  a  violation  of  legal 
right  to  interfere  with  contractual  relations  recognised  by  law  if 
there  be  no  sufficient  justification  for  the  interference. 

The  only  other  question  is  this:  Does  a  conspiracy  to  injure, 
resulting  in  damage,  give  rise  to  civil  liability?  It  seems  to  me  that 
there  is  authority  for  that  proposition,  and  that  it  is  founded  in  good 
sense.  Gregory  v.  Duke  of  Brunswick,  6  M.  &  G.  205,  953,  is  one 
authority,  and  there  are  others.  There  are  valuable  observations  on 
tHe  subject  in  Erie,  J.'s,  charge  to  the  jury  in  Duffield's  Case  (1851) 
5  Cox  C.  C.  404,  and  Rowland's  Case  (1851)  5  Cox  C.  C.  436.  Those 
were  cases  of  trade  union  outrages;  but  the  observations  to  which 
I  refer  are  not  confined  to  cases  depending  on  exploded  doctrines 


300  LAW  OF  TORTS. 

in  regard  to  restraint  of  trade.  There  are  also  weighty  observations 
to  be  found  in  the  charge  delivered  by  Lord  FitzGerald,  then  Fitz- 
Gerald,  J.,  in  Reg.  v.  Parnell  and  others  (1881)  14  Cox  C.  C.  508. 
That  a  conspiracy  to  injure — an  oppressive  combination — differs 
widely  from  an  invasion  of  civil  rights  by  a  single  individual  cannot 
be  doubted.  I  agree  in  substance  with  the  remarks  of  Bowen,  L.  J., 
and  Lords  Bramwell  and  Hannen,  in  the  Mogul  Case,  23  Q.  B.  D. 
598,  [1892]  A.  C.  25.  A  man  may  resist  without  much  difficulty 
the  wrongful  act  of  an  individual.  He  would  probably  have  at  least 
the  moral  support  of  his  friends  and  neighbors ;  but  it  is  a  very 
different  thing  (as  Lord  FitzGerald  observes)  when  one  man  has  to 
defend  himself  against  many  combined  to  do  him  wrong. 

I  do  not  think  that  the  acts  done  by  the  defendants  were  done  "in 
contemplation  or  furtherance  of  a  trade  dispute  between  employers 
and  workmen."  So  far  as  I  can  see,  there  was  no  trade  dispute  at 
all.  Leathern  had  no  difference  with  his  men.  They  had  no  quarrel 
with  him.  For  his  part  he  was  quite  willing  that  all  his  men  should 
join  the  union.  He  offered  to  pay  their  fines  and  entrance  moneys. 
What  he  objected  to  was  a  cruel  punishment  proposed  to  be  in- 
flicted on  some  of  his  men  for  not  having  joined  the  union  sooner. 
There  was  certainly  no  trade  dispute  in  the  case  of  Munce.  But 
the  defendants  conspired  to  do  harm  to  Munce  in  order  to  compel 
him  to  do  harm  to  Leathern,  and  so  enable  them  to  wreak  their 
vengeance  on  Leathem's  servants  who  were  not  members  of  the 
union. 

Lord  SHAND,  Lord  BRAMPTON,  and  Lord  LINDLEY  wrote 
concurring  opinions. 

Appeal  dismissed,  with  costs. 

(See  Read  v.  Friendly  Society,  etc.  [1902]  2  K.  B.  732 ;  Glamorgan  Coal  Co.  v. 
So.  Wales  Miners'  Federation  [1903]  2  K.  B.  545.  It  is  generally  held  in  this 
country  that  a  "boycott"  by  a  combination  of  men  is  an  actionable  conspiracy. 
Gray  v.  Building  Trades  Council  [Minn.]  97  N.  W.  663  [citing  many  cases]; 
Barr  v.  Essex  Trades  Council,  53  N.  J.  Eq.  101.  30  Atl.  881;  Webb  v.  Drake, 
52  La.  Ann.  290,  26  South.  791;  Hopkins  v.  Oxley  Stave  Co.,  83  Fed.  912,  28 
C.  C.  A.  99.  The  same  has  been  held  of  a  combination  of  men,  having  no  legiti- 
mate interests  to  protect,  to  ruin  the  business  of  another  by  maliciously  induc- 
ing his  patrons  and  third  parties  not  to  deal  with  him  [Ertz  v.  Produce  Ex- 
change Co.,  79  Minn.  140,  81  N.  W.  737,  48  L.  R.  A.  90,  79  Am.  St  Rep.  433; 
Delz  v.  Winfree,  80  Tex.  400,  16  S.  W.  111.  26  Am.  St.  Rep.  755;  Jersey  City 
Printing  Co.  v.  Cassidy,  63  N.  J.  Eq.  759,  53  Atl.  230 ;  on  this  subject  see  note 
ante,  on  page  116,  and  cases  cited] ;  so  of  a  combination  of  working  men  to 
coerce  others  by  threats  or  intimidation  to  join  their  union,  or  to  deprive  them 
of  work,  etc.  [Erdman  v.  Mitchell,  2~07  Pa.  79,  56  Atl.  327 ;  Curran  v.  Galen,  152 
N.  Y.  33,  46  N.  E.  297,  37  L.  R.  A.  802,  57  Am.  St.  Rep.  496;  Plant  v.  Woods, 
176  Mass.  492,  57  N.  E.  1011,  51  L.  R.  A.  339,  9  Am.  St.  Rep.  330;  cf.  National 
Protective  Ass'n  v.  Cumming.  170  N.  T.  315.  and  cases  cited  on  page  348,  63 
N.  B.  369,  379,  58  L.  R.  A.  135,  88  Am.  St  Rep.  648].) 


SLANDER  AND   LIBEL.  301 


SLANDER  AND  LIBEL. 


I.  SLANDER. 

A.  SLANDER  PER  Sa. 
I.  Charge  of  crime. 

(3  Hill,  21.) 

YOUNG  v.  MILLER. 

(Supreme  Court  of  New  York.     May  Term,  1842.) 

1.  SLANDEB— WORDS  IMPUTING  CRIME— THE  GENERAL  AMERICAN  RULE. 

Words  imputing  a  charge  which,  if  true,  would  subject  the  party 
charged  to  an  indictment  for  a  crime  involving  moral  turpitude,  or  subject 
him  to  an  infamous  punishment,  are  in  themselves  actionable. 

2.  SAME— CHARGE  OF  REMOVING  LANDMARK. 

The  removal  of  a  landmark  being  made  by  statute  (2  Rev.  St  N.  Y. 
pp.  695,  697,  §§  32,  40)  indictable  as  a  misdemeanor  and  punishable  by  fine 
and  imprisonment  in  the  county  jail,  and  also  involving  moral  turpitude, 
words  charging  a  person  with  that  offense  are  actionable  per  se. 

Demurrer  to  declaration. 

Action  for  slander.  The  defamatory  words  alleged  in  the  decla- 
ration to  have  been  spoken  by  defendant  of  and  concerning  plaintiff 
were  as  follows :  "You  [the  said  plaintiff  meaning]  have  removed 
my  landmark,  [meaning  the  monument  to  designate  the  corner  or 
boundary  of  defendant's  land.]"  "You  [the  said  plaintiff  meaning] 
have  removed  my  landmark,  [meaning  the  monument  of  said  de- 
fendant's land,]  and  I  [the  said  defendant  meaning]  can  prove  it." 
Also  the  latter  words,  with  the  addition,  "by  George  Wilkins."  Also 
the  same  words,  with  the  addition,  "and  cursed  is  he  that  removeth 
his  neighbor's  landmark."  Also,  "Cursed  is  he  that  removeth  his 
neighbor's  landmark,  and  you  [the  said  plaintiff  meaning]  have  done 
it;"  meaning  that  plaintiff  had  removed  the  monument  of  defend-- 
ant's  land,  and  thereby  then  and  there  meaning  to  charge  plaintiff 
with  the  offense  of  willfully  and  maliciously  removing  the  monument 
designating  the  corner  or  other  point  in  the  boundary  of  defendant's 
land.  Defendant  demurred  to  the  declaration  on  the  ground  that  the 
words  were  not  actionable  in  themselves,  and  that  there  was  no  allega- 
tion of  special  damage.  Plaintiff  joined  in  demurrer. 

BRONSON,  J  There  has  been  much  discussion  in  the  books 
upon  the  question,  what  words  are  actionable  in  themselves,  when 


302  LAW  OP  TORTS. 

not  spoken  of  the  plaintiff  in  his  office,  profession,  or  calling?  But 
it  will  be  unnecessary  to  examine  the  cases  at  large,  for  the  reason 
that  a  rule  has  been  laid  down  and  acted  upon  in  this  state,  which, 
although  not  entirely  satisfactory  to  my  mind,  I  feel  bound  to  follow. 
In  Brooker  v.  Coffin,  5  Johns.  188,  4  Am.  Dec.  337,  the  court,  "upon 
the  fullest  consideration,"  laid  down  the  following  rule:  "In  case 
the  charge,  if  true,  will  subject  the  party  charged  to  an  indictment 
for  a  crime  involving  moral  turpitude,  or  subject  him  to  an  infamous 
punishment,  then  the  words  will  be  in  themselves  actionable."  In 
Widrig  v.  Oyer,  13  Johns.  124,  the  counsel  proposed  to  modify  the 
rule  by  changing  "or"  into  "and,"  but  the  court  did  not  yield  to  the 
suggestion.  The  rule  was  repeated  and  followed  in  Martin  v.  Still- 
well,  13  Johns.  275,  7  Am.  Dec.  374,  where  words  were  held  action- 
able which  charged  the  plaintiff  with  keeping  a  bawdy-house.  Such 
a  house  is  a  common  nuisance,  and  the  person  keeping  it  may  be 
punished  by  indictment.  In  Gibbs  v.  Dewey,  5  Cow.  503,  the  charge 
was  that  the  plaintiff  had  handed  papers  to  a  juror  to  influence  or 
bribe  the  jury,  and  the  words  were  held  actionable.  In  Alexander 
v.  Alexander,  9  Wend.  141,  the  charge  was  that  the  plaintiff  had 
forged  the  defendant's  name  to  a  petition  to  the  legislature;  and, 
although  the  imputed  offense  was  only  a  misdemeanor,  and  not  a 
felonious  forgery,  the  words  were  held  actionable.  In  all  of  these 
cases  the  court  went  upon  the  ground  that  the  words  imputed  "a 
crime  involving  moral  turpitude,"  and  for  which  the  offender  might 
be  proceeded  against  by  indictment. 

Removing  a  landmark  seems  not  to  have  been  an  offense  at  the 
common  law,  nor  was  it  made  so  by  statute  until  1830,  when  it  was 
enacted  that  "every  person  who  shall  willfully  or  maliciously  remove 
any  monuments  of  stone,  wood,  or  other  durable  material,  erected 
for  the  purpose  of  designating  the  corner  or  any  other  point  in  the 
boundary  of  any  lot  or  tract  of  land,  shall,  upon  conviction,  be  ad- 
judged guilty  of  a  misdemeanor."  The  punishment  is  fine  and  im- 
prisonment in  the  county  jail.  2  Rev.  St.  pp.  695,  697,  §§  32,  40. 
And,  as  in  most  other  cases  of  crime,  the  prosecution  is  by  indict- 
ment. The  charge  which  has  been  made  against  the  plaintiff,  if 
true,  will  subject  him  to  punishment  by  indictment;  and  the  next 
inquiry  is  whether  the  imputed  crime  is  one  "involving  moral  tur- 
pitude." 

Removing  landmarks  was  forbidden  among  the  Jews,  and  a  curse 
was  denounced  upon  the  offender.  Deut.  xix.  14,  and  xxvii.  17) 
Job,  xxiv.  2 ;  Prov.  xxii.  28,  and  xxiii.  10.  The  learned  and  vener- 
able Doctor  Scott,  in  his  commentary  upon  the  first-mentioned  pas- 
sage, says :  "As  landmarks  constituted  the  customary  method  of 
distinguishing  landed  property  in  those  days,  removing  them  would 
be  a  crime  among  the  Israelites  similar  to  forging,  altering,  destroy- 
ing, or  canceling  the  title-deeds  of  estates  at  this  day;  and  would 


SLANDER  AND  LIBEL.  303 

occasion  atrocious  injustice,  and  make  way  for  dispute  and  lawsuits." 
And  in  his  remarks  upon  Prov.  xxii.  28,  he  calls  the  offenders  "rob- 
bers." Mr.  Henry,  in  his  commentary  upon  Deut.  xix.  14,  says : 
"Though  the  landmarks  were  set  by  the  hands  of  men,  yet  he  was  a 
thief  and  a  robber,  by  the  law  of  God,  that  removed  them."  And 
in  his  comments  upon  Job,  xxiv.  2,  he  says  the  offense  is  equivalent 
to  that  of  "forging  or  destroying  deeds."  Doctor  Adam  Clark,  in 
his  commentary  upon  these  passages,  has  taken  nearly  the  same  view 
of  the  question,  though  he  has  not  been  quite  so  severe  upon  the 
offenders.  But  this  is  a  subject  upon  which  it  cannot  be  necessary 
to  multiply  authorities.  There  is  evidently  no  great  difference,  in  a 
moral  point  of  view,  between  altering  the  courses  and  distances  in  a 
deed,  for  the  purpose  of  depriving  the  owner  of  a  part  of  his  land, 
and  producing  the  same  result  by  changing  the  visible  bounds  of  his 
estate.  The  one  is  a  forgery  on  paper,  and  the  other  upon  the  face 
of  the  earth,  and  when  either  of  these  wrongs  is  done  for  the  purpose 
of  acquiring  the  property  of  another,  the  offender  may  justly  be  re- 
garded as  a  thief  as  well  as  a  forger.  All  men  must  agree  that  the 
crime  of  removing  landmarks  is  one  involving  a  high  degree  of 
moral  turpitude;  and,  as  it  is  an  indictable  offense,  the  case  falls 
plainly  within  a  rule  from  which  we  are  not  at  liberty  to  depart. 
The  demurrer  does  not  point  out  any  defect  in  the  form  of  the 
declaration,  and  I  am  inclined  to  think  it  sufficient.  The  defendant 
must  have  intended  to  charge  the  plaintiff  with  a  criminal  offense. 
Miller  v.  Miller,  8  Johns.  74,  77;  Niven  v.  Munn,  13  Johns.  48; 
Goodrich  v.  Woolcott,  3  Cow.  231 ;  Woolcott  v.  Goodrich,  5  Cow. 
714;  Gibbs  v.  Dewey,  Id.  503. 

The  plaintiff  is  entitled  to  judgment. 

COWEN,  J.  I  concur  in  the  views  expressed  by  Mr.  Justice 
Bronson  on  the  question  raised  by  the  demurrer.  It  was  contended 
on  the  argument  that  the  cases  in  this  court  which  sanction  an  action 
of  slander  for  words  imputing  a  misdemeanor  intend  those  misde- 
meanors only  to  which  the  common  or  statute  law  now,  or  the  com- 
mon law  heretofore,  attached  legal,  as  contradistinguished  from 
moral,  infamy.  I  understand  those  cases  as  laying  down  a  rule  of 
much  greater  compass, — one  which  comprehends  every  indictable 
offense,  which  is  at  the  same  time  infamous  or  disgraceful  in  a  gen- 
eral sense;  any  offense  which  detracts  from  the  character  of  the 
offender  as  a  man  of  good  morals.  I  admit  that  this  principle  covers 
a  wide  field  of  litigation.  Perhaps  it  extends  beyond  what  was  once 
understood  to  be  the  true  boundary.  But  the  objection  that  the  law 
will  not  tolerate  the  uncertainty  thus  introduced  is  weakened  by  the 
manner  in  which  the  same  law  deals  with  actions  like  the  present  in 
kindred  cases.  Fluctuating  as  the  rules  of  conduct  prescribed  by 
the  moral  code  may  be,  they  are  every  day  judicially  recognized  as 


304  LAW  OF  TORTS. 

the  test  of  actions  for  printed  slander,  without  the  technical  limit 
required  by  the  rule  now  in  question.  There  the  offense  imputed 
need  not  be  even  indictable  or  legally  punishable  in  any  way;  and  a 
writing  or  picture  alluding  to  a  mere  foible  may  be  the  subject  of  an 
action,  if  intended  to  bring  the  party  into  contempt  or  ridicule. 

NELSON,  C.  J.,  also  concurred. 

Judgment  for  the  plaintiff. 

(The  same  decision  was  made  in  Todd  v.  Rough,  10  Serg.  &  R.  18.  In  Davis 
v.  Carey,  141  Pa.  314,  21  Atl.  633,  the  rule  laid  down  in  Young  v.  Miller,  ante, 
p.  301,  as  to  what  charges  of  crime  are  actionable  per  se,  is  approved,  but  it  is 
said  that  the  word  "infamous"  is  to  be  understood  in  its  popular  and  not  in 
its  technical  legal  sense.  "In  the  American  cases,"  says  this  decision,  "im- 
portance is  attached  to  the  inherent  nature  of  the  indictable  act,  and  also  to 
the  punishment  which  the  law  assigns  to  it,  upon  the  principle  that  social 
degradation  may  result  from  either."  "There  is  a  variety  of  misdemeanors" 
[as  nuisance,  assault  and  battery,  and  the  like]  "to  the  commission  of  which 
uot  even  the  shadow  of  disgrace  is  attached  by  the  world,"  and  hence  a  false 
charge  of  committing  these  is  not  slanderous  per  se.  Id.;  Andres  v.  Koppen- 
heafer,  3  Serg.  &  R.  255,  8  Am.  Dec.  647 ;  see  Geary  v.  Bennett,  53  Wis.  444, 
10  N.  W.  602;  Rutherford  v.  Paddock,  180  Mass.  289,  293,  62  N.  E.  381,  91 
Am.  St.  Rep.  282.  A  charge  of  committing  an  act  involving  moral  turpitude 
is  not  actionable  per  se,  if  the  act  is  not  an  indictable  offense.  Pollard  v. 
Lyon,  91  U.  S.  225,  23  L.  Ed.  308;  Anonymous,  60  N.  Y.  262,  19  Am.  Rep.  174. 
Language  which  charges  a  man  with  intending  at  some  future  time  to  commit 
an  offense  is  not  actionable.  Fanning  v.  Chace,  17  R.  I.  388,  22  AU.  275,  13 
L.  R.  A.  134,  33  Am.  St  Rep.  878.) 


(11  Q.  B.  Div.  609.) 

WEBB  v.  BEAVAN. 

(Queen's  Bench  Division.     May  30,  1883.) 

SLANDEB— WORDS  IMPUTING  CBIME— THE  ENGLISH  RULE. 

Words  imputing  a  criminal  offense  punishable  corporally  are  actionable 
per  se,  even  though  such  offense  be  not  punishable  by  indictment. 

Demurrer  to  statement  of  claim. 

Action  for  slander.  The  statement  of  claim  alleged  that  defend- 
ant maliciously  and  falsely  spoke  and  published  of  plaintiff  the  words 
following:  "I  will  lock  you  [meaning  the  plaintiff]  up  in  Gloucester 
gaol  next  week.  I  know  enough  to  put  you  [meaning 'the  plaintiff] 
there,  [meaning  thereby  that  the  plaintiff  had  been  and  was  guilty 
of  having  committed  some  criminal  offense  or  offenses.]"  Plaintiff 
claimed  £500  damages.  Defendant  demurred,  on  the  ground  that 
the  statement  of  claim  did  not  allege  circumstances  showing  that  the 
defendant  had  spoken  or  published  of  the  plaintiff  any  actionable 


SLANDER  AND   LIBEL.  305 

language,  and  that  no  cause  of  action  was  disclosed.     Plaintiff  joined 
in  demurrer. 

W.  H.  Nash,  in  support  of  the  demurrer. 

To  make  the  words  actionable,  the  innuendo  should  have  alleged 
that  they  imputed  an  offense  for  which  plaintiff  could  hav^  been  in- 
dicted. It  was  not  sufficient  to  allege  that  they  imputed  a  criminal 
offense  merely.  Odger,  Sland.  &  Lib.  p.  54. 

Hammond  Chambers,  opposed. 

According  to  the  earlier  authorities,  the  test,  in  ascertaining  wheth- 
er words  were  actionable  per  se,  was  whether  the  offense  was  pun- 
ishable corporally  or  by  fine.  It  was  not  necessary  to  allege  that 
the  words  imputed  an  indictable  offense.  Com.  Dig.  tit.  "Action  on 
the  Case  for  Defamation,"  05,9;  Curtis  v.  Curtis,  10  Bing.  477. 

POLLOCK,  B.  I  am  of  opinion  that  the  demurrer  should  be 
overruled.  The  expression  "indictable  offense"  seems  to  have  crept 
into  the  text-books,  but  I  think  the  passages  in  Comyns'  Digest  are 
conclusive  to  show  that  words  which  impute  any  criminal  offense 
are  actionable  per  se.  The  distinction  seems  a  natural  one,  that 
words  imputing  that  the  plaintiff  has  gendered  himself  liable  to  the 
mere  infliction  of  a  fine  are  not  slanderous,  but  that  it  is  slanderous 
to  say  that  he  has  done  something  for  which  he  can  be  made  to 
suffer  corporally. 

LOPES,  J.  I  am  of  the  same  opinion.  I  think  it  is  enough  to 
allege  that  the  words  complained  of  impute  a  criminal  offense.  A 
great  number  of  offenses  which  were  dealt  with  by  indictment  20 
years  ago  are  now  disposed  of  summarily,  but  the  effect  cannot  be 
to  alter  the  law  with  respect  to  actions  for  slander. 

Demurrer  overruled. 


(3  Hill,  139.) 

CHASE  v.  WHITLOCK. 
(Supreme  Court  of  New  York.     July  Term,  1842.) 

SLANDEB— WORDS  IMPUTING  CHARGE  OF  SWINDLING. 

To  say  that  a  person  is  a  "swindler"  Is  not  actionable  per  se;  the  word 
being  merely  equivalent  to  "cheat,"  and  not  necessarily  implying  the 
crime  of  obtaining  goods  under  false  pretenses. 

Demurrer  to  declaration. 

Action  for  slander.     The  declaration  alleged,  in  its  first  count,  the 
speaking  by  defendant  of  the  words,  "Chase  is  a  blackleg  and  swin- 
CHASE  (2o  ED.) — 20 


306  LAW  OF  TORTS. 

dler ;  here  is  Stephen  Potter's  letter  to  confirm  it ;"  with  the  innuen- 
do that  plaintiff  had  been  guilty  of  the  crime  of  swindling ;  and  in  the 
second  count  the  words,  "Chase  is  a  black-legged  swindler ;  his  agent 
refused  to  do  his  business ;  here  is  Potter's  letter,  which  I  will  show 
you,  confirming  the  fact;"  with  the  innuendo  that  plaintiff  had  been 
guilty  of  the  crime  of  swindling;  and  defendant  was  so  understood 
by  the  people  who  heard  the  words.  Defendant  demurred  to  the 
declaration.  Plaintiff  joined  in  demurrer. 

BRONSON,  J.  There  is  no  colloquium  of  obtaining  goods  by 
false  pretenses,  nor  is  there  anything  else  to  show  that  the  words 
were  used  in  any  other  than  their  ordinary  sense.  Swindling  is  not 
a  crime  known  to  our  law.  The  word  "swindler"  is  an  exotic,  which 
came  from  Germany,  and  has  but  recently  become  naturalized  in  our 
language.  In  Todd's  Johnson,  "swindler"  is  defined  to  be  "a  sharp- 
er ;  a  cheat ;"  and  to  swindle,  "to  cheat ;  to  impose  upon  the  credulity 
of  mankind,  and  thereby  to  defraud  the  unwary  by  false  pretense? 
and  fictitious  assumptions."  Webster  defines  "swindler"  as  "a  cheat : 
a  rogue;  one  who  defrauds  grossly,  or  one  who  makes  a  practice 
of  defrauding  others  by  imposition  or  deliberate  artifice."  And  in 
Tomlin's  Law  Dictionary  (Ed.  1836)  the  word  is  defined,  "a  cheat; 
one  who  lives  by  cheating."  To  call  one  a  "swindler"  is  about  equiv- 
alent to  saying  he  is  a  "cheat,"  which  has  never  been  held  actionable. 
Either  of  those  charges  may,  under  certain  circumstances,  imply  that 
the  accused  is  guilty  of  the  crime  of  obtaining  goods  by  false  pre- 
tenses. But  they  do  not  necessarily  mean  so  much.  There  are 
many  ways  in  which  a  man  may  wrong  another  in  such  a  manner 
as  to  earn  the  title  of  "swindler"  or  "cheat,"  without  subjecting  him- 
self to  an  indictment  for  a  criminal  offense.  This  question  has  been 
considered  as  settled  ever  since  the  decision  in  Savile  v.  Jardine,  2 
H.  Bl.  532.  It  was  there  held  that  words  charging  the  plaintiff  with 
being  a  swindler  were  not  actionable.  Eyre,  C.  J.,  said  the  word 
was  "only  equivalent  to  'cheat;'  it  cannot  be  carried  further;  and 
that  is  not  actionable."  He  added,  "  'thief  always  implies  felony, 
but  'cheat'  not  always."  Buller,  J.,  said  "swindler"  means  no  more 
than  "cheat ;"  "when  a  man  is  said  to  be  'swindled,'  it  means  'tricked' 
or  'outwitted.'  "  That  case  was  followed  by  the  supreme  court  of 
Massachusetts  in  Stevenson  v.  Hayden,  2  Mass.  406 ;  and  see  Carter 
v.  Andrews,  16  Pick.  I,  9.  In  Neal  v.  Lewis,  2  Bay,  204,  the  word 
"swindler"  was  applied  to  a  merchant ;  and,  besides,  the  plaintiff  was 
also  charged  with  being  a  thief.  The  court  had  no  occasion  to  say 
whether  the  first  charge  was  actionable  or  not.  I  am  not  a\vare 
that  words  charging  the  plaintiff  with  being  a  swindler  have  ever 
been  held  actionable,  and,  upon  principle,  I  think  they  are  not.  They 


SLANDER  AND  LIBEL.  307 

do  not  necessarily  import  a  criminal  offense  involving  moral  turpi- 
tude, and  punishable  by  indictment. 
Judgment  for  defendant. 

(So  held  also  In  Pollock  v.  Hastings,  88  Ind.  248;  Weil  v.  Altenhofen,  26 
Wis.  708.  But  to  call  a  man  "swindler  and  thief"  is  actionable  per  se  [Stern 
v.  Katz,  38  Wis.  13(5] ;  so  to  call  a  man  a  "thief"  [Krup  v.  Corley,  95  Mo.  App. 
040,  U9  S.  W.  609;  Smith  v.  Moore,  74  Vt.  81,  52  Atl.  320].) 


(14  Johns.  233.) 

VAN  ANKIN  v.  WESTFALL  (In  part). 
(Supreme  Court  of  New  York.     August  Term,  1817.) 

SLANDER— WORDS  IMPUTING  CBTME  IN  ANOTHER  STATE. 

An  action  may  be  maintained  for  words  charging  a  crime,  although  the 
transaction  referred  to  took  place  in  a  State  other  than  that  in  which  the 
words  were  spoken  and  the  action  brought,  so  that  there  could  be  no  prose- 
cution for  the  crime  in  the  latter  State,  even  if  it  had  been  committed. 

Motion  for  new  trial. 

Action  for  slander,  in  speaking  of  plaintiff  the  words,  as  alleged  in 
the  declaration  and  proved  on  the  trial,  "He  is  a  thief,  and  has  stolen 
fifty  dollars  in  cash  from  Jacob  De  Witt."  These  words  were  spoken 
in  the  state  of  New  York,  but  referred  to  a  transaction  which  took 
place  in  the  state  of  Pennsylvania,  where  Jacob  De  Witt  resided. 
Defendant  moved  for  a  nonsuit,  on  the  ground  that  the  words  as 
proved  were  not  actionable,  as  they  did  not  charge  plaintiff  with  the 
commission  of  any  crime  or  misdemeanor  for  which  he  was  liable 
to  be  indicted  and  punished  in  the  state  of  New  York.  The  motion 
was  denied.  The  case  was  submitted  to  the  court  without  argument. 

PER  CURIAM.  This  is  an  action  of  slander,  charging  the  de- 
fendant with  saying  of  the  plaintiff,  "He  is  a  thief,  and  has  stolen 
fifty  dollars  in  cash  from  Jacob  De  Witt."  It  appeared  in  proof  that 
Jacob  De  Witt  resided  in  the  state  of  Pennsylvania,  and  that  the 
transaction  referred  to  by  the  defendant  took  place  in  that  state. 
The  plaintiff's  right  to  sustain  the  action  was  objected  to,  because  no 
crime  was  alleged  against  him  for  which  he  could  be  punished  here. 
This  objection  was  properly  overruled.  Although  the  plaintiff  might 
not  be  amenable  to  our  law,  had  the  charge  against  him  been  true, 
yet,  from  anything  that  appears,  he  might  have  been  demanded  as 
a  fugitive  from  justice,  and  have  been  punished,  if  guilty,  in  the  state 
of  Pennsylvania.  But -the  right  of  the  plaintiff  to  sustain  the  action 
does  not  depend  upon  the  question  whether  he  was  liable  to  be 
prosecuted  and  punished  for  the  crime  charged  against  him;  as, 
when  the  statute  of  limitations  has  run  against  the  criminal  prosecu- 


308  LAW  OF  TORTS. 

tion,  it  is  still  slander  to  charge  the  party  with  the  offense ;  and  the 
party  making  the  charge  would  have  a  right  to  justify,  and  show 
the  truth  of  his  allegation,  notwithstanding  the  criminal  prosecution 
might  be  barred.  The  motion  for  a  new  trial  must  accordingly  be 
denied. 

Motion  denied. 

(So  held  also  in  Klumph  v.  Dunn,  66  Pa.  141,  5  Am.  Rep.  355.) 


(2  Moody  &  R.  119.) 

FOWLER  v.  DOWDNEY. 

(Court  of  Queen's  Bench.     March  2,  1838.) 

SliANDEB— WORDS  IMPUTINO  CRIME  FOR  WHICH  PUNISHMENT  HAS  BEEN  SUF- 
FERED. 

To  say  falsely  that  a  person  is  a  "returned  convict"  is  actionable  per  se ; 
the  obloquy  remaining,  even  though  the  words  import  that  the  punishment 
has  been  suffered. 

At  nisi  prius,  before  DENMAN,  C.  J. 

Action  for  slander  for  saying  of  plaintiff,  "He  is  a  returned  con- 
vict." The  declaration  averred,  as  special  damage,  the  loss  of  a 
customer  to  whom  the  words  were  spoken,  plaintiff  being  a  trades- 
man ;  but  the  proof  of  the  special  damage  failed. 

DENMAN,  C.  J.  My  opinion  is  that  these  words  are  actionable, 
because  they  impute  to  the  plaintiff  that  he  has  been  guilty  of  some 
offense  for  which  parties  are  liable  to  be  transported.  That  is,  I 
think,  the  plain  meaning  of  the  words,  as  set  out  in  the  declaration. 
They  import,  to  be  sure,  that  the  punishment  has  been  suffered,  but 
still  the  obloquy  remains. 

Verdict  for  plaintiff ;  damages,  one  shilling. 

(To  the  same  effect  are  Smith  v.  Stewart,  5  Pa.  372;  Krebs  v.  Oliver,  12 
Gray,  242.) 


(2  Wend.  534.) 

GORHAM  v.  IVES. 

(Supreme  Court  of  New  York.     May  Term,  1829.) 

SLANDER — WORDS  IMPUTING  CRIME  BY  INTERROGATION. 

An  action  may  be  maintained  for  speaking  words  imputing  crime,  al- 
though not  in  direct  and  positive  terms,  but  by  way  of  interrogation  only, 
if,  according  to  the  natural  and  fair  construction  of  the  language  used,  in 
connection  with  the  circumstances,  the  hearers  had  a  right  to  believe  that 
defendant  intended  to  charge  plaintiff  with  the  commission  of  a  criminal 
offense. 


SLANDER  AND  LIBEL.  309 

Demurrer  to  declaration. 

Action  for  slander.  The  declaration  alleged  that  defendant  had 
become  possessed  of  a  promissory  note  dated  August  27,  1825,  made 
by  William  Erwin  and  James  Erwin,  payable  to  William  McMurray 
or  order,  for  $51.84,  payable  four  months  after  date,  "with  interest 
from  date,"  (the  words  quoted  being  interlined  in  the  note,)  which 
had  been  indorsed  to  plaintiff,  who  had  collected  the  amount.  The 
second  count  of  the  declaration  alleged  that  defendant,  in  a  discourse 
with  one  Parmelee  and  others,  after  showing  the  note,  spoke  these 
words :  "The  note  is  in  Edward  A.  Cook's  handwriting,  and  the 
words  at  the  end  of  the  note,  'with  interest  from  date,'  are  in  a  dif- 
ferent handwriting.  The  note  has  only  passed  through  the  hands  of 
Cook,  McMurray,  and  Gorham,  and  these  words  must  have  been 
put  there  by  one  of  them.  The  signers  of  the  note  say  the  words 
were  put  there  since  they  signed,  and  I  have  shown  the  note  to  a 
number  of  persons, — Reid  and  others ;"  and  then,  addressing  Parme- 
lee, proceeded:  "Do  not  you  think  it  is  Gorham's  handwriting?" 
and  that,  Parmelee  having  asked  defendant  to  explain  himself  and 
what  he  meant,  defendant  replied,  "Time  will  show."  The  third 
count  of  the  declaration  alleged  that  defendant,  in  a  certain  other 
discourse,  after  showing  the  note  to  sundry  persons,  spoke  these 
words,  "This  note  has  been  altered  after  it  was  signed ;"  and,  on  be- 
ing asked  by  one  of  the  by-standers  if  he  knew  by  whom  it  had  been 
done,  he  replied,  "I  do  not,  but  I  have  shown  it  to  some  persons, 
and  they  said  that  the  addition  at  the  end  of  the  note  was  in  Shubael 
Gorham's  handwriting;"  and  added  that  "one  of  the  signers  would 
swear  that  the  note  that  he  signed  was  not  written  payable  with  in- 
terest, for  he  refused  to  sign  such  an  one ;"  and,  on  being  asked  by 
one  of  the  persons  present  "if  Gorham  would  commit  forgery,"  de- 
fendant, holding  out  the  note,  replied,  "You  can  see  for  yourselves." 
Defendant  demurred  to  the  second  and  third  counts  of  the  declara- 
tion. 

SUTHERLAND,  J.  I  am  of  opinion  that  both  counts  are  good. 
The  words  used  by  the  defendant  necessarily  imply,  when  taken  in 
connection  with  the  colloquium,  that  the  words  "with  interest  from 
date"  had  been  forged  and  added  to  the  note  after  its  signature ;  and 
the  inquiry  by  the  defendant  in  the  second  count  of  Parmelee,  "if  he 
did  not  think  the  addition  was  in  Gorham's  handwriting,"  and  hi= 
declaration  in  the  third  count  that  he  had  showed  it  to  some  persons 
who  said  "the  addition  was  in  Shubael  Gorham's  handwriting,"  leave 
no  reasonable  doubt  that  it  was  the  intention  of  the  defendant  to 
impress  upon  the  minds  of  the  persons  whom  he  addressed  the  be- 
lief that  the  forgery  had  been  committed  by  Gorham.  The  charge 
need  not  be  couched  in  direct  and  positive  terms.  The  imputation 
of  crime  may  be  as  effectually  made  by  way  of  interrogation  as  by  an 


310  LAW  OF  TORTS. 

affirmative  allegation.  The  only  inquiry  is  whether,  according  to 
the  natural  and  fair  construction  of  the  language  used  by  the  de- 
fendant, (taken  in  connection  with  the  preliminary  circumstances 
stated  by  way  of  colloquium,)  the  persons  in  whose  presence  and 
hearing  the  language  was  used  had  a  right  to  believe  that  it  was  the 
intention  of  the  defendant  to  charge  the  plaintiff  with  the  commis- 
sion of  a  criminal  offense.  Such  was  obviously  the  intention  of  the 
defendant  in  this  case. 

Judgment  for  plaintiff  on  demurrer,  with  leave  to  defendant  to 
plead  on  payment  of  costs. 

(So  held  also  in  Hotchkiss  v.  Oliphant,  2  Hill,  510.  So  the  charge  may  be 
made  by  ironical  words  [Boydell  v.  Jones,  4  M.  &  W.  446],  or  by  other  indirect 
modes  of  speech  which  are  effectual  to  convey  the  defamatory  meaning  [Comm. 
v.  Kneeland,  20  Pick.  20G;  Sanderson  v.  Caldwell,  45  N.  Y.  398,  6  Am.  Rep.  105; 
Ruble  v.  Bunting  (Ind.  App.)  68  N.  E.  1041].) 


(1  Johns.  Cas.  279.) 

VAN  RENSSELAER  v.  DOLE. 

(Supreme  Court  of  New  York.     April  Term,  1800.) 

SLANDER— WORDS  IMPUTING  CRIME  ON  FACTS  NOT  CONSTITUTING  THE  OFFENSE. 

To  say  that  certain  persons  are  "highwaymen,  robbers,  and  murderers," 

the  words  being  spoken  and  understood  with  reference  to  transactions 

which  were  known  not  to  amount  to  the  charge  the  words  import,  is  not 

actionable. 

Motion  for  new  trial. 

Action  for  slander.  The  declaration  charged  defendant  with  speak- 
ing of  plaintiff  and  others  the  following  words :  "John  Keating  is 
as  damned  a  rascal  as  ever  lived,  and  all  who  joined  his  party  and 
the  procession  on  the  4th  day  of  July  [meaning  the  said  John  Van 
Rensselaer  and  the  party  and  procession  in  which  said  John  Keating 
acted  as  captain  on  said  4th  day  of  July]  are  a  set  of  black-hearted 
highwaymen,  robbers,  and  murderers."  In  other  counts,  the  words 
were  differently  charged,  with  some  additional  expressions,  but  in 
substance  the  same.  Defendant  pleaded  the  general  issue.  At  the 
trial  the  words  charged  were  proved  to  have  been  spoken  by  defend- 
ant. On  behalf  of  defendant  it  was  shown  that,  on  the  day  preceding 
the  speaking  of  the  words,  there  had  been  a  public  procession  to  a 
church  in  the  place  where  the  parties  resided ;  that  Keating  com- 
manded an  artillery  company,  which  formed  part  of  the  procession, 
attended  with  music;  that  one  Bird  claimed  one  of  the  instruments 
of  music,  a  bass-viol,  and  went  to  the  church  to  demand  or  take  it, 
but  it  was  refused  and  retained  by  force;  that  upon  this  an  affray 


SLANDER  AND   LIBEL.  311 

ensued,  in  which  Bird  received  a  dangerous  wound.  There  was  evi- 
dence that  the  conversation  in  which  these  words  were  spoken  was 
understood  by  the  witnesses  to  relate  to  the  transactions  of  the  pre- 
ceding day,  and  that  the  terms  "highwaymen,  robbers,  and  murder- 
ers" were  used  in  reference  to  the  treatment  of  Bird  in  withholding 
the  bass-viol,  and  in  wounding  him.  The  judge  was  of  opinion  that 
the  words  being  spoken  in  relation  to  the  transactions  of  the  preced- 
ing day,  and  so  understood,  were  thereby  explained,  and  on  that  ac- 
count not  actionable.  The  jury  found  a  verdict  for  plaintiff  for  $50 
damages  and  6  cents  costs.  Defendant  moved  for  a  new  trial,  on 
the  ground  that  the  verdict  was  contrary  to  law  and  the  evidence. 

PER  CURIAM.  We  agree  in  opinion  with  the  judge  at  the  trial. 
The  words  spoken  by  the  defendant  were  clearly  understood  to  ap- 
ply to  the  transactions  of  the  preceding  day,  and  these  were  known 
not  to  amount  to  the  charge  which  the  words  would  otherwise  im- 
port.1 Let  the  verdict,  therefore,  be  set  aside ;  and,  there  being  no 
question  upon  the  evidence,  the  finding  of  the  jury  must  be  consid- 

i  NOTE  BY  EDITOB  OF  SECOND  EDITION  OF  JOHNSON'S  CASES.  In  Cristie  v. 
Cowell,  Peake,  4,  the  words  proved  were,  "He  is  a  thief,  for  he  has  stolen  my 
beer."  It  appeared  in  evidence  that  the  defendant  was  a  brewer,  and  that 
the  plaintiff  had  lived  with  him  as  a  servant;  in  the  course  of  which  service 
he  had  sold  beer  to  different  customers  of  the  defendant,  and  received  money 
for  the  same  which  he  had  not  duly  accounted  for.  Lord  Kenyon  directed 
the  jury  to  consider  whether  these  words  were  spoken  in  reference  to  the  money 
received  and  unaccounted  for  by  the  plaintiff,  or  whether  the  defendant  meant 
that  the  plaintiff  had  actually  stolen  beer;  for,  if  they  referred  to  the  money 
not  accounted  for,  that,  being  a  mere  breach  of  contract,  so  far  explained  the 
word  "thief"  as  to  make  it  not  actionable.  Thus,  if  a  man  says  to  another, 
"You  are  a  thief,  for  you  stole  my  tree,"  it  is  not  actionable,  (Minors  v.  Lee- 
ford,  Cro.  Jac.  114;  Bull.  N.  P.  p.  5;)  for  it  shows  he  had  a  trespass,  and  not 
a  felony,  in  his  contemplation.  Words  may  import  a  charge  of  felony,  yet,  if 
it  appear  from  the  subject-matter  that  the  fact  charged  could  not  have  hap- 
pened, an  action  cannot  be  maintained.  Jackson  v.  Adams,  2  Bing.  N.  C.  402, 
2  Scott,  599 ;  Snag  v.  Gee,  4  Coke,  16a ;  Steph.  N.  P.  2252,  2253.  "Words  ap- 
parently actionable  may  be  explained  by  circumstances  to  have  been  intended 
and  understood  in  an  innocent  sense.  Thus,  though  the  defendant  should  say, 
'Thou  art  a  murderer,'  the  words  would  not  be  actionable,  if  the  defendant 
could  make  it  appear  that  he  was  conversing  with  the  plaintiff  concerning  un- 
lawful hunting,  when  the  plaintiff  confessed  that  he  killed  several  hares  with 
certain  engines,  upon  which  the  defendant  said,  'Thou  art  a  murderer;'  mean- 
ing a  murderer  of  hares  so  killed.  Lord  Cromwell's  Case,  4  Coke,  13.  But 
the  words,  'I  think  the  business  ought  to  have  the  most  rigid  inquiry,  for  he 
murdered  his  first  wife, — that  is,  he  administered  improperly  medicines  to  her 
for  a  certain  complaint,  which  was  the  cause  of  her  death,' — were  held  to  be 
actionable,  as  importing,  at  least,  a  charge  of  manslaughter;  and,  though  the 
words  were  doubtful,  the  doubt  would  be  cured  by  the  finding  of  a  jury  that 
they  were  meant  in  that  sense.  Ford  v.  Primrose,  5  DowL  &  R.  288."  1  Star- 
kie,  Sland.  &  L.  (Wend.  Ed.)  99  et  seq. 


312  LAW  OF  TORTS. 

ered  as  contrary  to  law,  and  it  is  therefore  ordered  that  the  costs 
abide  the  event  of  the  suit. 

Rule  granted. 

(The  rule  is  that  the  language  employed  Is  to  be  given  Its  ordinary  Import 
and  meaning,  unless  an  explanation  accompanies  the  words,  which  gives  them 
a  different  meaning,  or  unless  all  the  hearers  understand  that  they  refer  to  a 
transaction  which  cannot  constitute  the  crime  which  the  words  imply.  Hayes 
v.  Ball,  72  N.  Y.  418.  "To  charge  one  with  having  murdered  a  person  who  is 
alive  to  the  knowledge  of  all  cannot  be  understood  to  charge  the  crime  of  mur- 
der"; but  the  rule  is  otherwise  if  any  one  of  the  hearers  does  not  know  that 
such  person  is  still  alive.  Hamlin  v.  Fautl  (Wis.)  95  N.  W.  955;  Egan  v.  Sem- 
rad,  113  Wis.  84,  88  N.  W.  906;  Kidd  v.  Ward,  91  Iowa,  371,  59  N.  W.  279.) 


2.  Charge  of  certain  contagious  diseases. 

(7  Gray,  181.) 

GOLDERMAN  v.  STEARNS  et  ux. 
(Supreme  Judicial  Court  of  Massachusetts.    Oct  Term,  1856.) 

L  SLANDEB— WORDS  IMPUTING  CONTAGIOUS  DISEASE. 

To  say  of  a  man  that  he  has  the  venereal  disease  Is  actionable,  as  tend- 
inf  to  exclude  him  from  society;  but  if,  when  the  charge  was  made,  he 
had  such  disease,  the  truth  of  the  charge  is  a  justification. 

2.  SAME. 

Defendant  asserted  that  plaintiff  had  the  venereal  disease,  and,  having 
married,  communicated  it  to  his  wife,  and  that  he  was  "the  guilty  one." 
Held,  that  no  action  could  be  maintained  therefor  if  plaintiff  in  fact  had 
such  disease;  and  that  evidence  that  it  was  communicated  to  him  by  his 
wife,  whom  he  had  married  not  knowing  that  she  had  the  disease,  was 
immaterial. 

3.  SAME— IMPLIED  CHARGE  OF  CRIME. 

Such  words  are  not  actionable  as  Imputing  to  plaintiff  a  punishable 
offense:  they  do  not  necessarily  import  the  commission  of  adultery  or  for- 
nication. 

On  exceptions. 

Action  by  Caspar  Golderman  against  Charles  Stearns  and  wife  for 
slander.  The  declaration  alleged  that  the  female  defendant  accused 
plaintiff  of  "having  had  a  loathsome  venereal  disease,  and  with  that 
disease  upon  him  having  contracted  marriage,  and  given  the  disease 
to  his  wife,  by  words  spoken  of  the  plaintiff,  who  was  then  and  there 
lately  married  to  his  wife,  substantially  as  follows :  'Golderman  has 
the  venereal  disease.  It  is  an  old  affair,  and  being  married  has 
brought  it  on  again.  He  is  the  guilty  one.  He  has  given  it  to  his 
wife.' "  At  the  trial  plaintiff  introduced  evidence  tending  to  prove 
the  words  and  colloquium  set  forth,  and  rested  his  case.  Defendants 
then  introduced  evidence  that,  immediately  after  his  marriage,  plain- 
tiff had  such  disease,  and  claimed  that  this  made  out  a  justification. 


BLANDER  AND  LIBEL.  313 

Plaintiff  then  offered  to  prove  that,  being  a  widower,  and  the  father 
of  adult  children,  he  married  a  woman  who  had  the  disease,  of  which 
fact  he  was  then  ignorant,  and,  immediately  after  the  marriage,  took 
the  disease  from  his  wife,  and  thereupon  sent  her  away  from  his 
house,  and  had  not  lived  with  her  since.  The  judge  ruled  that  if 
the  jury  were  satisfied  that  plaintiff,  at  the  time  of  the  speaking  of 
the  words  set  forth  in  the  declaration,  had  the  disease  in  fact,  it  would 
be  a  sufficient  justification,  and  the  evidence  offered  by  plaintiff  was 
immaterial.  A  verdict  was  taken  for  defendants.  Plaintiff  alleged 
exceptions. 

METCALF,  J.  The  charge  against  the  plaintiff  of  his  having  the 
venereal  disease  is  held  to  be  actionable  for  the  same  reason  that  a 
charge  of  his  having  the  leprosy  or  the  plague  would  be;  not  be- 
cause the  charge  imputes  any  legal  or  moral  offense,  but  solely  be- 
cause it  tends  to  exclude  him  from  society  as  a  person  having  a  dis- 
gusting and  contagious  disease.  Hence  it  is  that  to  charge  one  with 
having  had  the  disease  is  not  actionable;  such  charge  not  tending 
to  exclude  him  from  society  as  a  person  with  whom  it  is  unsafe  to 
associate.  March,  Sland.  (Ed.  1674,)  77,  78 ;  Crittal  v.  Homer,  Hob. 
219;  Bloodworth  v.  Gray,  8  Scott,  N.  R.  n;  Carslake  v.  Mapledo- 
ram,  2  Term  R.  473 ;  3  Bl.  Comm.  123,  note  by  Christian ;  2  Dane, 
Abr.  568. 

The  jury  having  found  that  the  plaintiff,  when  the  charge  against 
him  was  made,  had  the  venereal  disease,  there  remains  no  ground 
on  which  this  action  can  be  maintained;  for  the  truth  of  the  charge 
is  a  justification.  Doubtless  such  a  charge  as  the  plaintiff  complains 
of  may  be  accompanied  with  words  that  necessarily  impute  adultery 
or  fornication,  either  of  which  is  an  offense  punishable  by  the  laws 
of  this  commonwealth.  In  such  a  case  the  charge  would  be  action- 
able. But,  in  the  present  case,  the  words  which  were  added  to  the 
charge  of  the  plaintiff's  having  the  disease  did  not  impute  any  pun- 
ishable offense.  They  only  asserted  that  the  plaintiff,  while  a  wid- 
ower, was  diseased,  and,  after  his  marriage  to  his  present  wife,  com- 
municated the  disease  to  her.  The  allegation  that  he  was  "the  guilty 
one"  means  that  the  disease  was  communicated  by  him  to  her,  and 
not  by  her  to  him.  It  does  not  import  that  he  contracted  the  disease 
guiltily;  that  is,  by  committing  adultery  or  fornication.  Nor  does 
the  plaintiff's  declaration  aver  that  any  punishable  offense  is  imputed 
to  him  by  the  words  spoken. 

Judgment  on  the  verdict. 

(See  also  Williams  v.  Holdredge,  22  Barb.  396;  Hewit  v.  Mason,  24  How. 
Prac.  366 ;  Kaucher  v.  Blinn,  29  Ohio  St  62,  23  Am.  Rep.  727.) 


314  LAW  OF  TORTS. 

3.  Charge  affecting  a  man  in  his  office,  profession,  trade, 
employment,  etc. 

(7  Wend.  204) 

FORWARD  v.  ADAMS  (in  part). 
(Supreme  Court  of  New  York.    May,  1831.) 

1.  SLANDEB — WORDS  AFFECTING  PLAINTIFF  IN  His  OFFICE  OB  VOCATION. 

Words  which  are  not  actionable  in  themselves,  but  could  be  so  only  In 
consequence  of  the  special  character  of  the  person  of  whom  they  are  spok- 
en, are  not  actionable  when  spoken  after  such  person  has  ceased  to  sus- 
tain that  special  character;  the  ground  of  action  is  that  the  party  is  dis- 
graced or  injured  in  his  profession  or  trade,  or  exposed  to  the  hazard  of 
losing  his  office,  in  consequence  of  the  slanderous  words,  not  that  his  gen- 
eral reputation  is  affected  by  them. 

2.  SAME — CHARGE   AFFECTING   PUBLIC   OFFICER   AFTER   TERMINATION   OF   His 

OFFICE. 

To  say,  of  a  person  formerly  appointed  to  negotiate  a  treaty  with  In- 
dians, that  he  bribed  them  to  sign  the  treaty,  not  being  actionable  except 
as  affecting  him  in  such  office,  is  not  actionable  where  the  office  had  ex- 
pired before  the  words  were  spoken. 

Demurrer  to  declaration. 

Action  for  slander.  The  declaration  set  forth  by  way  of  induce- 
ment that,  on  May  23,  1826,  plaintiff  was  appointed  by  the  president 
of  the  United  States  a  commissioner  on  the  part  and  behalf  of  the 
United  States,  as  the  general  protector  of  Indian  tribes,  to  attend  a 
treaty  to  be  held  between  the  proprietors  of  the  pre-emption  right 
to  certain  lands  held  by  Indians  in  the  state  of  New  York,  and  those 
Indians,  under  the  sanction  of  the  government  of  the  United  States, 
for  the  extinguishment  of  the  right  of  the  Indians  to  the  occupancy 
of  such  lands,  with  instructions  to  exercise  a  sound  discretion  in  the 
business,  and,  if  satisfied  of  the  fairness  of  the  propositions  of  the 
proprietors,  to  afford  them  such  co-operation  in  effecting  the  object 
of  the  treaty  as  he  might  judge  proper ;  and  that,  having  accepted 
the  appointment,  plaintiff,  on  August  31,  1826,  attended  a  treaty  at 
Buffalo,  and,  being  satisfied  of  the  fairness  of  the  propositions  of  the 
proprietors,  he  sanctioned,  approved,  and  recommended  a  treaty 
there  made  between  the  Indians  and  proprietors  for  the  extinguish- 
ment of  the  right  of  the  Indians  to  the  occupancy  of  the  lands,  the 
subject  of  the  treaty;  and  it  charged  that  defendant,  in  a  discourse 
had  on  June  I,  1828,  of  and  concerning  the  plaintiff,  and  of  and  con- 
cerning his  conduct  as  such  commissioner,  and  in  relation  to  the 
treaty  which  had  been  concluded,  uttered  the  following  words,  al- 
leged to  be  false,  scandalous,  and  defamatory,  viz. :  "He  bribed 
some  of  the  Indians  to  sign  the  treaty.  He  hired  some  of  the  In- 
dians to  sign  the  treaty.  He  was  guilty  of  hiring  or  bribing  some 
of  the  Indians  to  sign  the  treaty.  He  was  dishonest  with  the  In- 


SLAISTDER  AND  LIBEL.  315 

dians."  Innuendo,  that  plaintiff  had  misdemeaned  himself  in  his  ap- 
pointment, had  perverted  his  office,  and  corruptly  exercised  his  in- 
fluence with  the  Indians  by  means  of  bribery  and  corruption.  De- 
fendant demurred  to  the  declaration. 

SUTHERLAND,  J.  The  demurrer  is  well  taken.  It  is  conceded 
that  the  words  do  not  impute  an  indictable  offense.  If  true,  the 
plaintiff  would  not  be  subjected  by  them  to  a  criminal  prosecution. 
The  offense,  if  any,  was  an  offense  against  the  United  States,  and  it 
is  not  shown  that  they  have  any  statute  applicable  to  the  case ;  and 
the  better  opinion  seems  to  be  that  the  court  of  the  United  States 
have  no  general  common-law  criminal  jurisdiction.  U.  S.  v.  Hud- 
son, 7  Cranch,  32,  3  L.  Ed.  259 ;  U.  S.  v.  Worrall,  2  Dall.  384,  Fed. 
Cas.  No.  16,766,  1  L.  Ed.  426 ;  opinion  of  Chief  Justice  Marshall  in 
Burr's  Trial;  U.  S.  v.  Coolidge,  I  Gall.  488,  Fed.  Cas.  No.  14,857, 
Id.,  I  Wheat.  415,  4  L.  Ed.  124;  Dissertation  on  the  Nature  and  Extent 
of  the  Jurisdiction  of  the  Courts  of  the  United  States,  by  Mr.  Du 
Ponceau;  I  Kent,  Comm.  311,  320;  Serg.  Const.  Law,  262,  265. 

The  action  is  put  distinctly  on  the  ground  that  the  words  were 
spoken  of  the  plaintiff  as  a  public  officer,  and  tended  to  his  injury 
and  disparagement  in  that  character^  The  fatal  objection  to  the  ac- 
tion on  this  ground  is  that  it  appears  on  the  face  of  the  declaration 
that  the  plaintiff  was  not  in  office  when  the  words  were  spoken,  but 
that  the  office  itself,  being  a  special  trust,  and  temporary  in  its  na- 
ture, had  expired  about  two  years  before  the  uttering  of  the  slander- 
ous words.  Where  an  action  is  brought  for  words  (not  actionable 
in  themselves)  spoken  of  a  person  in  a  particular  calling  or  profes- 
sion or  employment,  it  must  appear  that  he  followed  such  profession 
or  employment  when  the  words  were  spoken.  In  Gibs  v.  Price,  Style, 
231,  the  judgment  was  arrested  because  it  was  not  averred  that  the 
plaintiff  was  a  barrister  at  the  time  of  the  bringing  of  his  action,  the 
words  having  been  spoken  of  him  in  his  professional  character.  And 
in  Gary's  Case,  Poph.  207,  the  words  were  spoken  of  the  plaintiff 
as  a  counselor  at  law ;  and  it  was  said  by  Jones,  J.,  that  it  was  not 
sufficient  for  the  plaintiff  to  aver  that  he  was  eruditus  in  lege,  but 
he  ought  to  say  that  he  was  homo  conciliarius.  He  must  show  that 
he  sustained  the  special  character  in  relation  to  which  the  words 
were  uttered.  In  King  v.  Lake,  2  Vent.  28,  (which  was  also  a  case 
of  words  spoken  of  the  plaintiff  as  a  lawyer,)  it  was  expressly  stated 
that  the  plaintiff  was  bred  up  to  the  law,  and  practiced  it,  and  had 
many  persons  for  his  clients,  and  thereby  got  money  and  maintained 
his  family.  Kerle  v.  Osgood,  I  Vent.  50.  Upon  the  strength  of 
these  and  other  cases,  it  is  laid  down  in  treatises  upon  this  subject 
that,  where  an  action  is  brought  for  words  spoken  of  a  barrister  or 
physician,  it  must  appear  that  he  practiced  as  such  at  the  time  the 
words  were  spoken;  for  otherwise  the  words  could  not  have  af- 


316  LAW  OF  TORTS. 

fected  him  professionally.  Starkie,  SlancJ.  &  L.  105;  Bac.  Abr.  tit. 
"Slander,"  212-215.  So,  if  an  action  be  brought  for  publishing  words 
of  a  tradesman,  concerning  his  trade,  it  must  be  averred  that  at  the 
time  of  publishing  them  he  was  in  trade;  for,  if  he  were  not  at 
that  time  in  trade,  his  credit  could  not  be  hurt  by  the  words.  Col- 
lins v.  Malin,  Cro.  Car.  382;  Jordan  v.  Lyster,  Cro.  Eliz.  273;  Tut- 
hill  v.  Milton,  Cro.  Jac.  222.  These  cases  all  admit  this  principle, 
for,  although  the  court  in  some  of  them  refused  to  arrest  the  judg- 
ment, it  was  upon  the  ground  that,  after  verdict,  they  would  intend, 
from  the  general  averment,  (that  the  plaintiff  had,  for  a  long  time 
preceding  the  day  on  which  the  words  were  laid,  exercised  the  trade,) 
that  he  continued  to  exercise  it  on  the  day  the  words  were  published. 

The  ground  of  action  in  these  cases  is  that  the  party  is  disgraced 
or  injured  in  his  profession  or  trade,  or  exposed  to  the  hazard  of 
losing  his  office  in  consequence  of  the  slanderous  words,  not  that  his 
general  reputation  and  standing  in  the  community  are  affected  by 
them.  It  will  be  recollected  that  the  words  spoken,  in  this  class  of 
cases,  are  not  actionable  of  themselves,  but  that  they  become  so  in 
consequence  of  the  special  character  of  the  party  of  whom  they  are 
spoken.  The  fact  of  his  sustaining  that  special  character,  therefore, 
lies  at  the  very  foundation  of  the  action.  On  this  ground,  therefore, 
the  declaration  is  bad. 

Judgment  for  defendant. 

(To  the  same  effect  are  Allen  v.  Hillman,  12  Pick.  101;  Harris  T.  Burley,  8 
N.  H.  216;  Dicken  v.  Shepherd,  22  Md.  399.) 


(1  Sandf.  155.) 

IRELAND  v.  McGARVISH. 

(Superior  Court  of  New  York  City,  General  Term.    December.  1847.) 

SLANDER— WORDS  AFFECTING  PLAINTIFF  IN  His  BUSINESS. 

To  say  of  the  keeper  of  a  house  of  public  entertainment,  "He  is  a  dan- 
gerous man;"  "He  is  a  desperate  man;"  "I  am  afraid  to  go  to  his  house 
alone;"  "I  am  afraid  of  my  life," — is  not  actionable,  as  affecting  his  busi- 
ness, since  the  words  do  not  relate  to  his  business  character,  or  charge  any 
delinquency  in  his  business. 

Motion  to  set  aside  nonsuit  and  for  a  new  trial. 

Action  of  slander.  The  declaration  alleged  that  plaintiff  was  the 
proprietor  of  a  certain  garden  and  house  of  refreshment  and  enter- 
tainment, by  keeping  which  he  obtained  large  gains  and  profits ;  and 
that  defendant  spoke  and  uttered  to  one  Taggart  and  to  others  the 
following  defamatory  words  of  and  concerning  the  plaintiff,  and  of 
and  concerning  his  trade  and  business  :  "I  [the  said  defendant  mean- 
ing] am  afraid  to  go  to  his  [the  said  plaintiff  meaning]  house  alone, 
[referring  to  the  said  plaintiff,  and  thereby  and  then  and  there  mean- 


SLANDER  AND  LIBEL.  317 

ing  that  the  said  plaintiff  was  a  dangerous  man,  whom  the  said  de- 
fendant had  good  cause  to  be  afraid  of,  and  that  the  said  defendant, 
for  the  preservation  of  his  life,  had  to  have  some  one  to  protect 
him.]"  "I  [the  said  defendant  meaning]  am  afraid  of  my  life,  [there- 
by and  then  and  there  meaning  that  the  said  plaintiff  was  seeking 
his,  the  said  defendant's,  life.]"  "He  [the  said  plaintiff  meaning]  is 
a  dangerous  man,  [thereby  and  then  and  there  meaning  that  the 
said  plaintiff  was  a  dangerous  and  disreputable  man,  whom  he,  the 
said  Taggart,  and  others  should  shun  as  unworthy  of  his  esteem,  and 
that  the  said  plaintiff  was  a  man  whom  it  would  be  dangerous  to 
trust.]"  "He  [the  said  plaintiff  meaning]  is  a  desperate  man,  [there- 
by and  then  meaning  as  last  aforesaid.]"  "Look  out,  for  it  is  more 
than  likely  he  [the  said  plaintiff  meaning]  will  take  advantage  of 
you,  [thereby  and  then  and  there  meaning  that  the  said  plaintiff  was 
a  dishonest  and  disreputable  person,  who  would  take  advantage  of 
those  who  should  confide  in  him,  or  repose  confidence  in  him,  the 
said  plaintiff,  and  that  the  said  plaintiff  was  one  who  should  be  treat- 
ed and  looked  upon  as  a  disreputable  man,  likely,  if  an  opportunity 
presented,  to  cheat  and  defraud.]"  "He  [the  said  plaintiff  meaning] 
is  a  thief,  [thereby  and  then  and  there  meaning  that  the  said  plain- 
tiff had  been  guilty  of  a  crime  of  stealing,  which  rendered  him  amena- 
ble to  the  laws  of  the  state,  as  and  for  a  felony.]"  At  the  trial,  in 
October,  1846,  a  witness  for  plaintiff,  one  Robert  Sears,  testified  that 
plaintiff  for  six  years  past  owned  and  kept  the  Washington  House 
and  gardens  at  Hoboken;  that  in  the  summer  of  1845,  about  the 
month  of  June,  defendant  called  at  a  public  house  in  Elm  street,  in 
the  city  of  New  York,  where  witness  was  employed  as  a  bar-keeper, 
and  commenced  a  conversation  about  plaintiff.  He  said  he  had  left 
plaintiff's  employment.  He  said :  "He  is  a  dangerous  man."  "He 
is  a  desperate  man."  "I  am  afraid  to  go  to  his  house  alone."  "I 
am  afraid  of  my  life."  Witness  stated  that,  previous  to  this,  he  was 
in  the  habit  of  going  to  plaintiff's  house  at  Hoboken,  with  his  friends, 
for  refreshments  and  entertainment,  and  had  been  in  such  habit  for 
about  four  years.  After  this  conversation  with  defendant  the  wit- 
ness did  not  go  to  plaintiff's  for  some  time,  and  made  up  his  mind 
that  he  would  not  go  again  until  he  had  seen  plaintiff;  and  it  was 
not  until  he  had  called  on  the  witness,  and  satisfied  him  of  the  falsity 
of  the  assertions  made  by  defendant,  that  the  witness  renewed  his 
visits.  Upon  this  testimony  plaintiff  rested.  A  motion  was  made 
for  a  nonsuit,  which  was  granted.  Plaintiff  moved  to  set  aside  the 
nonsuit. 

VANDERPOEL,  J.  It  cannot  be  pretended  that  the  words 
proved  to  have  been  spoken  by  the  defendant  are  actionable  per  se ; 
but  it  is  contended  that  they  convey  an  imputation  affecting  the  busi- 
ness of  the  plaintiff,  and  are  therefore  actionable.  It  is  a  well-establish- 


318  LAW  OF  TORTS. 

ed  rule  that  words  are  actionable  which  directly  tend  to  the  prejudice  of 
any  one,  in  his  office,  trade,  business,  or  means  of  getting  a  livelihood. 
Onslow  v.  Home,  3  Wils.  186;  Starkie,  Sland.  &  L.  180.  The  words, 
to  be  actionable,  because  they  injure  one  in  his  business,  must  have  a 
direct  tendency  to  produce  this  effect.  They  must  relate  to  his  business 
character.  In  Doyley  v.  Roberts,  3  Bing.  N.  C.  835,  it  was  said  of  an 
attorney,  "He  has  defrauded  his  creditors,  and  has  been  horsewhipped 
off  the  course  at  Doncaster."  The  jury  found  that  the  words  tended 
to  injure  the  plaintiff  morally  and  professionally,  but  they  also  found 
they  were  not  spoken  of  him  in  his  business  of  an  attorney,  and  for 
that  reason  the  court  ordered  a  nonsuit.  Tindal,  C.  J.,  said  the  words, 
though  spoken  of  an  attorney,  do  not  touch  him  in  his  profession,  any 
more  than  they  would  touch  a  person  in  any  other  trade  or  profession. 
So  here,  though  the  words  were  spoken  of  a  man  who  happened  to  keep 
a  public  garden  and  house  of  entertainment,  they  did  not  touch  or  affect 
him  more  than  they  would  have  touched  or  affected  a  person  in  any  oth- 
er business  or  profession.  In  Southam  v.  Allen,  3  Salk.  326,  T.  Raym. 
231,  the  plaintiff  declared  that  he  was  a  keeper  of  a  livery  stable,  and  of 
the  Bell  Savage  Inn,  and  that  the  defendant  had  other  stables  there,  and 
that  W.  R.,  coming  thither  with  a  wagon,  inquired  of  the  defendant 
which  was  the  Bell  Savage  Inn,  who  replied,  "This  is  Bell  Savage  Inn ; 
deal  not  with  Southam,  [the  plaintiff,]  for  he  is  broke,  and  there  is  nei- 
ther entertainment  for  man  or  horse."  After  verdict  for  the  plaintiff, 
the  judgment  was  affirmed.  This  was  a  charge  that  came  directly  home 
to  the  business  of  the  plaintiff.  But  to  say  of  a  man,  "I  am  afraid  to  go 
to  his  house  alone;"  "He  is  a  desperate  man;"  "He  is  a  dangerous 
man ;"  "I  am  afraid  of  my  life," — is  no  more  calculated  directly  to  af- 
fect his  business  as  keeper  of  a  house  of  entertainment  than  to  preju- 
dice his  business  as  a  merchant,  a  baker,  or  a  blacksmith.  All  general 
imputations  upon  the  morality  or  integrity  of  men,  if  believed  by  those 
who  hear  them,  may  possibly  prejudice  the  business  interests  of  those 
of  whom  they  are  spoken ;  but  the  law  has  not  yet  been  so  prolific  of 
slander  suits  as  to  say  that  such  general  ebullitions,  charging  no  crime, 
and  pointing  to  no  profession  or  means  of  livelihood,  shall  form  the 
legitimate  foundation  of  an  action  for  defamation.  Words,  to  be  ac- 
tionable, as  affecting  the  plaintiff's  business,  must  charge  some  delin- 
quency in  connection  with  such  business. '  In  the  late  case  of  Van 
Tassel  v.  Capron,  I  Denio,  250,  43  Am.  Dec.  667,  it  was  expressly  held 
that,  where  words  are  actionable  only  on  account  of  the  official  or  pro- 
fessional character  of  the  plaintiff,  it  is  not  enough  that  they  tend  to  in- 
jure him  in  his  office  or  calling,  but  they  must  relate  to  his  official  or 
business  character,  and  impute  misconduct  to  him  in  that  character.  As 
the  words  here  are  not  actionable  in  themselves,  and  do  not  relate  to  the 
business  of  the  plaintiff,  the  nonsuit  was  properly  granted. 

(See  Dauncey  v.  Holloway  L1901]  2  K.  B.  441;   Morasse  v.  Brochu,  151  Mass. 
567,  575,  25  N.  B.  74,  8  L.  R.  A.  524,  21  Am.  St.  Rep.  474;    Kinney  v.  Nash, 


BLANDER  AND  LIBEL.  319 

3  N.  Y.  177;  Lovejoy  v.  Whitcomb,  174  Mass.  586,  55  N.  E.  322;  Sanderson  v. 
Caldwell,  45  N.  Y.  398,  6  Am.  Rep.  105.  A  charge  against  an  innkeeper  that 
"he  kept  no  accommodations,  and  a  person  could  not  get  a  decent  meal  or  de- 
cent bed  if  he  tried,"  has  been  held  actionable  per  se.  Trimmer  Y.  Hiscock, 
27  Hun,  364.) 


(18  Barb.  425.) 

SECOR  v.  HARRIS  (in  part). 
(Supreme  Court  of  New  York,  General  Term.     September  12,  1854.) 

1.  SLANDER— WORDS  IMPUTING  WANT  OF  PROFESSIONAL  SKILL. 

To  charge  a  physician  with  gross  ignorance  and  unskillfulness  in  his 
profession,  though  in  but  a  single  act,  is  actionable  per  se.  In  such  a  case 
the  law  presumes  damage  from  the  very  nature  of  the  charge. 

2.  SAME. 

To  say  of  a  physician  in  regard  to  his  treatment  of  children  not  over 
three  years  of  age,  "He  killed  my  children.  He  gave  them  tea-spoonful 
doses  of  calomel,  and  it  killed  them.  They  died  the  same  day," — is  action- 
able. 

Motion  for  new  trial. 

Argued  before  CRIPPEN,  SHANKLAND,  and  MASON,  JJ. 

MASON,  J.  This  is  an  action  for  slander.  Upon  trial  of  the  cause, 
the  plaintiff  proved  the  following  words,  which  were  also  alleged  in 
the  complaint:  "Dr.  Secor  killed  my  children."  "He  gave  them  tea- 
spoonful  closes  of  calomel,  and  they  died.  Dr.  Secor  gave  them  tea- 
spoonful  doses  of  calomel,  and  it  killed  them.  They  did  not  live  long 
after  they  took  it.  They  died  right  off,  the  same  day."  The  plaintiff 
was  proved  to  be  a  practicing  physician,  and  the  evidence  shows  that 
he  had  practiced  in  the  defendant's  family,  and  had  prescribed  for  the 
defendant's  children,  and  that  the  words  were  spoken  of  him  in  his  char- 
acter of  a  physician.  The  plaintiff  claimed  that  the  words  were  ac- 
tionable, and  that  he  was  entitled  to  have  this  branch  of  the  case,  upon 
the  words,  submitted  to  the  jury.  The  judge  at  the  circuit  held  that  the 
words  were  not  actionable,  and  took  them  from  the  consideration  of  the 
jury.  These  words  spoken  of  the  plaintiff  as  a  physician  are  actionable 
per  se,  whatever  may  be  said  upon  the  question  whether  they  impute  a 
criminal  offense.  They  do  not  impute  a  criminal  offense,  unless  there 
is  evidence,  arising  from  the  quantity  of  calomel  which  the  defendant 
alleged  that  the  plaintiff  gave  these  children,  from  which  a  jury  would 
be  justified  in  finding  an  intention  to  kill  them.  One  of  them  was  three 
years  of  age,  and  the  other  one  year  and  a  half.  If  the  natural  result, 
which  should  reasonably  be  expected  from  feeding  children  of  tender 
years  full  tea  spoon  doses  of  calomel,  would  be  certain  death,  then  it  is 
not  a  forced  construction  of  the  words  to  say  that  the  defendant  intended 
to  charge  the  plaintiff  with  an  intention  to  kill  these  children  in  giving 


320  LAW  OP  TORTS. 

them  such  doses.  It  is  not  necessary,  however,  to  place  the  case  upon 
this  ground ;  for  it  is  certainly  slanderous  to  say  of  a  physician  that  he 
killed  these  children  of  such  tender  years,  by  giving  them  tea-spoonful 
doses  of  calomel.  The  charge,  to  say  the  least,  imports  such  a  total  ig- 
norance of  his  profession  as  to  destroy  all  confidence  in  the  physician. 
It  is  a  disgrace  to  a  physician  to  have  it  believed  that  he  is  so  ignorant 
of  this  most  familiar  and  common  medicine  as  to  give  such  quantities 
thereof  to  such  young  children.  The  law  is  well  settled  that  words 
published  of  a  physician,  falsely 'imputing  to  him  general  ignorance  or 
want  of  skill  in  his  profession,  are  actionable,  in  themselves,  on  the 
ground  of  presumed  damage.  Starkie,  Sland.  &  L.  100,  no,  115,  120, 
122;  Martyn  v.  Burlings,  Cro.  Eliz.  589;  Bac.  Abr.  tit.  "Slander,"  B; 
Watson  v.  Vanderlash,  Het.  69;  Tutty  v.  Alewin,  n  Mod.  221 ;  Smith 
v.  Taylor,  I  Bos.  &  P.  (N.  R.)  196 ;  Sumner  v.  Utley,  7  Conn.  257.  I 
am  aware  that  it  was  held  in  the  case  of  Poe  v.  Mondford,  Cro.  Eliz.  620, 
that  it  is  not  actionable  to  say  of  a  physician,  "He  hath  killed  a  patient 
with  physic :"  and  that,  upon  the  strength  of  the  authority  of  that  case, 
it  was  decided  in  this  court  in  Foot  v.  Brown,  8  Johns.  64,  that  it  was 
not  actionable  to  say  of  an  attorney  or  counselor,  when  speaking  of  a 
particular  suit,  "He  knows  nothing  about  the  suit;  he  will  lead  you 
on  until  he  has  undone  you."  These  cases  are  not  sound.  The  case  of 
Poe  v.  Mondford  is  repudiated  in  Bacon's  Abridgement  as  authority, 
and  cases  are  referred  to  as  holding  a  contrary  doctrine.  Volume  9,  pp. 
49,  50.  The  cases  of  Poe  v.  Mondford  and  of  Foot  v.  Brown  were  re- 
viewed by  the  supreme  court  of  Connecticut  in  the  case  of  Sumner  v. 
Utley,  7  Conn.  257,  with  most  distinguished  ability,  and  the  doctrine  of 
those  cases  repudiated.  In  the  latter  case  it  is  distinctly  held  that  words 
are  actionable  in  themselves  which  charge  a  physician  with  ignorance 
or  want  of  skill  in  his  treatment  of  a  particular  patient,  if  the  charge 
be  such  as  imports  gross  ignorance  or  unskillfulness.  To  the  same  ef- 
fect is  the  case  of  Johnson  v.  Robertson,  8  Port.  486,  where  it  was  held 
that  the  following  words,  spoken  of  a  physician  in  regard  to  his  treat- 
ment of  a  particular  case,  "He  killed  the  child  by  giving  it  too  much  cal- 
omel," are  actionable  in  themselves;  and  such  is  the  case  of  Tutty  v. 
Alewin,  n  Mod.  221,  where  it  was  held  to  be  actionable  to  say  of  an 
apothecary  that  "he  killed  a  patient  with  physic."  See,  also,  Onslow  v. 
Home,  3  Wils.  186;  Bac.  Abr.  tit.  "Slander,"  B  2,  vol.  9,  p.  49,  (Bouv. 
Ed.)  The  cases  of  Poe  v.  Mondford  and  Foot  v.  Brown  have  been 
repudiated  by  the  highest  judicial  tribunal  in  two  of  the  American 
states,  while  the  case  of  Poe  v.  Mondford  seems  to  have  been  repudiated 
in  England ;  and  I  agree  with  Clinch,  J.,  that  the  reason  upon  which  the 
case  is  decided  is  not  apparent.  I  do  not  go  the  length  to  say  that  false- 
hood may  not  be  spoken  of  a  physician's  practice,  in  a  particular  case, 
without  subjecting  the  party  to  this  action.  A  physician  may  mistake 
the  symptoms  of  a  patient,  or  may  misjudge  as  to  the  nature  of  his  dis- 
ease, and  even  as  to  the  powers  of  medicine,  and  yet  his  error  may  be 


SLANDER  AND  LIBEL.  321 

of  that  pardonable  kind  that  will  do  him  no  essential  prejudice,  because 
it  is  rather  a  proof  of  human  imperfection  that  of  culpable  ignorance  or 
unskillfulness ;  and,  where  charges  are  made  against  a  physician  that 
fall  within  this  class  of  cases,  they  are  not  actionable  without  proof  of 
special  damages.  7  Conn.  257.  It  is  equally  true  that  a  single  act  of  a 
physician  may  evince  gross  ignorance,  and  such  a  total  want  of  skill  as 
will  not  fail  to  injure  his  reputation,  and  deprive  him  of  general  con- 
fidence. When  such  a  charge  is  made  against  a  physician,  the  words 
are  actionable  per  se.  Id.  The  rule  may  be  laid  down  as  a  general  one 
that,  when  the  charge  implies  gross  ignorance  and  unskillfulness  in  his 
profession,  the  words  are  actionable  per  se.  This  is  upon  the  ground 
that  the  law  presumes  damage  to  result  from  the  very  nature  of  the 
charge.  The  law  in  such  a  case  lays  aside  its  usual  strictness ;  for  when 
the  presumption  of  damage  is  violent,  and  the  difficulty  of  proving  it  is 
considerable,  the  law  supplies  the  defect,  and,  by  converting  presump- 
tion into  proof,  secures  the  character  of  the  sufferer  from  the  misery 
of  delay,  and  enables  him  at  once  to  face  the  calumny  in  open  court. 
Starkie,  Sland.  &  L.  581.  It  was  well  said  by  the  learned  Chief  Justice 
Hosmer  in  Sumner  v.  Utley,  7  Conn.  257,  that,  "as  a  general  prin- 
ciple, it  can  never  be  admitted  that  the  practice  of  a  physician  or  sur- 
geon in  a  particular  case  may  be  calumniated  with  impunity,  unless 
special  damage  is  shown.  By  confining  the  slander  to  particulars,  a 
man  may  thus  be  ruined  in  detail.  A  calumniator  might  follow  the 
track  of  the  plaintiff,  and  begin  by  falsely  ascribing  to  a  physician  the 
killing  of  three  persons  by  mismanagement,  and  then  the  mistaking  an 
artery  for  a  vein,  and  thus  might  proceed  to  misrepresent  every  single 
case  of  his  practice,  until  his  reputation  should  be  blasted  beyond  rem- 
edy. Instead  of  murdering  character  by  one  stroke,  the  victim  Would 
be  cut  successively  in  pieces,  and  the  only  difference  would  consist  in  the 
manner  of  effecting  the  same  result."  It  is  true,  as  was  said  by  the 
learned  Chief  Justice  Hosmer  in  that  case,  the  redress  proposed,  on  the 
proof  of  special  damage,  is  inadequate  to  such  a  case.  Much  time  may 
elapse  before  the  fact  of  damage  admits  of  any  evidence,  and  then  the 
proof  will  always  fall  short  of  the  mischief.  In  the  meantime  the 
reputation  of  the  calumniated  person  languishes  and  dies,  and  hence,  as 
we  have  before  said,  the  presumption  of  damage  being  violent,  and  the 
difficulty  of  proving  it  considerable,  the  law  supplies  the  defect  by  con- 
verting presumption  of  damage  into  proof,  (Starkie,  Sland.  &  L.  581 ;) 
in  other  words,  the  law  presumes  that  damages  result  from  the  speak- 
ing of  the  words.  In  the  case  under  consideration,  the  words  proved 
impute  to  the  plaintiff  such  gross  ignorance  of  his  profession,  if  nothing 
more,  as  would  be  calculated  to  destroy  his  character  wherever  the 
charge  should  be  credited.  It  would  be  calculated  to  make  all  men  speak 
out  and  say,  as  did  the  witness  Richard  Morris,  "that  it  was  outrageous, 
and  the  plaintiff  ought  not  to  be  permitted  to  practice."  The  law  will 
CHASE  (2o  ED.) — 21 


322  LAW  OF  TORTS. 

therefore  presume  damages  to  result  from  the  speaking  of  the  words, 
and  consequently  hold  the  words  actionable  in  themselves.  The  judge 
at  the  circuit  erred  in  taking  this  branch  of  the  case  from  the  consid- 
eration of  the  jury,  and  a  new  trial  must  be  granted,  costs  to  abide  the 
event  of  the  action. 
New  trial  granted. 

CRIPPEN,  J.,  concurred.    SHANKLAND,  J.,  dissented. 

(See  also  Cruikshank  v.  Gordon,  118  N.  Y.  178,  23  N.  B.  457;  Mattice  v.  Wil- 
cox,  147  N.  T.  624,  42  N.  E.  270  [charge  against  attorney] ;  De  Pew  v.  Robin- 
son, 95  Ind.  109;  Fitzgerald  v.  Redfleld,  51  Barb.  484  [charge  against  a  mason]; 
Lumby  v.  Allday,  1  Cromp.  &  J.  301.  In  Gauvreau  v.  Superior  Pub.  Co.,  62  Wis. 
403,  22  N.  W.  726,  the  rule  is  stated  as  follows,  as  regards  physicians:  "A 
physician  is  only  required  to  possess  the  ordinary  knowledge  and  skill  of  his 
profession.  He  may  possess  these,  and  much  more,  and  yet  be  unable  to  ac- 
curately diagnose  every  disease  presented,  or  always  foretell  the  exact  power 
and  effect  of  medicine  or  treatment  prescribed.  So  long,  therefore,  as  the 
words  employed  in  stating  the  conduct  of  the  physician  in  a  particular  case 
only  impute  to  him  such  ignorance  or  want  of  skill  as  is  compatible  with  the 
ordinary  or  general  knowledge  and  skill  in  the  same  profession,  they  are  not 
actionable  per  se.  But  where  the  words  so  employed  in  detailing  the  action 
of  the  physician  in  a  particular  case,  taken  together,  are  such  as  fairly  impute 
to  him  gross  ignorance  and  unskillfulness  in  such  matters  as  men  of  ordinary 
knowledge  and  skill  in  the  profession  should  know  and  do,  then  they  are  ac- 
tionable per  ae."  Cf.  Crane  v.  Darling,  71  Vt.  295,  44  Atl.  359.) 


B.  SLANDER  WITH  SPECIAL  DAMAGE. 

(17  N.  Y.  54,  72  Am.  Dec.  420.) 

TERWILLIGER  v.  WANDS  (in  part). 

(Court  of  Appeals  of  New  York.     March,  1858.) 

1.  SLANDER— SPECIAL  DAMAGE — REPETITION  BY  OTHER  PERSONS. 

Damages  caused  by  the  repetition  of  defamatory  words  by  the  person 
to  whom  they  were  spoken,  without  proper  occasion  for  repeating  them, 
are  not  the  natural  and  legal  consequence  of  the  first  speaking  of  them, 
and  the  person  so  repeating  them  is  alone  liable  for  such  damages. 

2.  SAME. 

Illness  and  inability  to  labor,  caused  by  the  effect  on  one's  mind  of  de- 
famatory words  reported  to  him  to  have  been  spoken  of  him,  are  not  spe- 
cial damages  for  which  he  can  maintain  an  action  of  slander.  Only  in- 
juries affecting  the  reputation  are  the  subject  of  the  action.  The  words 
must  in  fact  disparage  the  character,  and  this  disparagement  must  be 
evidenced  by  some  positive  loss  arising  therefrom,  directly  and  legitimate- 
ly, as  a  fair  and  natural  result 


SLANDER  AND  LIBEL.  323 

Appeal  from  Supreme  Court,  General  Term,  Fifth  District 
Action  for  slander.  The  complaint  alleged  the  speaking  by  defend- 
ant of  words  charging  plaintiff  with  lewd  and  unchaste  conduct,  and 
also  alleged  special  damage  therefrom.  At  the  trial,  several  witnesses 
for  plaintiff,  among  them  La  Fayette  Wands  and  John  S.  Neiper,  testi- 
fied to  the  speaking  of  such  words  by  defendant,  charging  plaintiff  with 
continued  unlawful  intercourse  with  a  Mrs.  Fuller  at  her  house.  The 
only  evidence  that  what  defendant  said  was  communicated  to  plaintiff 
was  that  given  by  the  witness  Neiper,  who,  having  testified  to  the 
speaking  of  such  words  by  defendant  to  him  in  the  beginning  of  May, 
1852,  further  testified  that  he  had  married  the  sister  of  Mrs.  Fuller, 
and  that  he  was  an  intimate  friend  of  plaintiff;  that  in  May,  1852,  he 
communicated  to  plaintiff  what  defendant  had  said  to  him,  and  in  June 
of  the  same  year,  while  hoeing  corn  with  plaintiff,  talked  over  what 
La  Fayette  Wands  had  said  defendant  had  told  him ;  that  the  story  of 
what  La  Fayette  Wands  had  said  defendant  told  him  was  all  over  the 
country;  that  the  witness  told  plaintiff  what  the  report  was,  that  he 
went  to  Mrs.  Fuller's  for  the  purpose  of  having  connection  with  her; 
that  plaintiff  felt  bad,  threw  down  his  hoe,  and  left  the  field ;  that  plain- 
tiff had  always  worked  with  the  witness  before  that,  and  he  had  been 
in  middling  good  health ;  that  plaintiff  after  that  appeared  melancholy, 
and  looked  bad,  pale,  and  sick ;  his  appetite  was  poor,  and  he  had  to  hire 
more  help.  Nancy  Harpburn,  a  daughter  of  the  plaintiff,  testified  that 
she  heard  the  report  that  La  Fayette  Wands  had  circulated  the  ist  of 
May,  1852;  that  she  remembered,  when  Neiper  hoed  corn  there,  of 
plaintiff's  getting  worse,  going  into  the  house,  and  to  bed ;  that  she  re- 
marked a  great  difference  in  his  appearance,  not  resting  at  night ;  did 
not  discover  any  other  difference;  he  did  not  pursue  his  work  as  for- 
merly; this  debility  commenced  in  June;  heard  of  Wands'  report  in 
May  or  June ;  first  heard  of  its  coming  through  La  Fayette  Wands,  in 
June,  about  the  middle  of  hoeing  time,  and  then  remarked  a  difference 
in  his  appearance ;  he  grew  worse  all  through  the  summer.  On  cross- 
examination  she  testified  that  she  heard  some  slight  reports  through  the 
winter  that  he  was  very  intimate,  and  more  than  was  proper,  with  Mrs. 
Fuller,  and  had  frequent  conversations  with  her  father  about  it;  that 
she  knew  that  Mr.  Fuller  made  such  charges  during  the  v/inter  and 
summer,  and  that  she  talked  with  her  father  about  what  Fuller  had  said ; 
that  a  lady  told  her  in  May  it  was  reported  Fuller  had  caught  her  fa- 
ther there,  and  she  told  her  father  in  June ;  that  Dr.  Price  prescribed 
for  the  plaintiff  in  June  and  July.  Dr.  Price  testified  that  he  called  to 
see  plaintiff  as  a  patient  in  May  or  June,  1852 ;  that  plaintiff  was  de- 
bilitated with  what  appeared  to  be  mental  difficulty;  that  he  judged, 
from  what  plaintiff's  friends  said,  that  plaintiff's  health  was  impaired 
so  that  he  could  not  labor  on  his  farm ;  that  plaintiff  was  out  of  health 
through  the  summer.  George  Terwilliger,  a  son  of  plaintiff,  testified 
that  he  saw  plaintiff  frequently  along  in  May  and  June,  1852 ;  that  his- 


324  LAW  OF  TORT&. 

health  in  the  winter  was  good,  and  began  to  decline  about  the  1st  of 
May,  and  became  worse  after  that,  and  during  the  summer  he  was  en- 
tirely prostrated;  that  he  became  worse,  and  unable  to  attend  to  his 
business,  and  neglected  it ;  his  crops  were  neglected  and  fences  down ; 
his  corn  suffered  for  want  of  hoeing;  that  the  plaintiff  appeared  like 
a  person  worn  down  by  sickness  in  May,  June,  and  July ;  he  was  a  farm- 
er, and  his  business  required  his  personal  attention  every  day. 

Plaintiff  having  rested,  defendant  moved  for  a  nonsuit  on  the 
grounds:  (i)  That  the  words  were  not  spoken  by  defendant  to  the 
plaintiff,  nor  authorized  by  him  to  be  communicated  to  plaintiff;  (2) 
that  there  was  no  evidence  that  the  damages,  if  any,  proved,  were  occa- 
sioned by  the  speaking  of  the  words  by  the  defendant.  The  court  grant- 
ed the  motion,  and  judgment  was  entered  against  plaintiff,  and  was  af- 
firmed on  appeal  to  the  general  term.  Plaintiff  appealed  from  the  judg- 
ment of  affirmance  by  the  general  term. 

STRONG,  J.  The  words  spoken  by  the  defendant  not  being  ac- 
tionable of  themselves,  it  was  necessary,  in  order  to  maintain  the  action, 
to  prove  that  they  occasioned  special  damages  to  the  plaintiff.  The 
special  damages  must  have  been  the  natural,  immediate,  and  legal  con- 
sequence of  the  words.  Starkie,  Sland.  &  L.  (Wend.  2d  Ed.)  203;  2 
Starkie,  Sland.  &  L.  62,  64;  Beach  v.  Ranney,  2  Hill,  309;  Grain  v. 
Petrie,  6  Hill,  523,  41  Am.  Dec.  765;  Kendall  v.  Stone,  5  N.  Y.  14. 
Where  words  are  spoken  to  one  person,  and  he  repeats  them  to  an- 
other, in  consequence  of  which  the  party  to  whom  they  are  spoken 
sustains  damages,  the  repetition  is,  as  a  general  rule,  a  wrongful  act, 
rendering  the  person  repeating  them  liable  in  like  manner  as  if  he  alone 
had  uttered  them.  The  special  damages  in  such  a  case  are  not  a  nat- 
ural, legal  consequence  of  the  first  speaking  of  the  words,  but  of  the 
wrongful  act  of  repeating  them,  and  would  not  have  occurred  but  for 
the  repetition,  and  the  party  who  repeats  them  is  alone  liable  for  the 
damages.  Ward  v.  Weeks,  7  Bing.  211;  Hastings  v.  Palmer,  20 
Wend.  226 ;  Keenholts  v.  Becker,  3  Denio,  346 ;  Stevens  v.  Hartwell,  1 1 
Mete.  (Mass.)  542.  These  views  dispose  of  this  case  as  to  the  right  of 
action  in  respect  to  all  the  words  but  those  spoken  to  the  witness  Neiper, 
as  there  is  no  proof  as  to  the  circumstances  under  which  they  were  re- 
peated. In  the  absence  of  evidence  of  those  circumstances,  the  general 
rule,  that  a  repetition  of  slanderous  words  is  wrongful,  applies ;  hence 
any  damages  which  resulted  from  repeating  them  are  a  consequence  of 
that  wrong,  and  not  a  natural,  immediate,  and  legal  effect  of  the  original 
speaking  of  the  words  by  the  defendant. 

Assuming  that  illness  and  inability  to  labor  constitute  such  spe- 
cial damages  as  will  support  an  action,  the  evidence  in  this  case 
wholly  fails  to  show  that  the  damages  were  a  consequence  of  the 
words  spoken  by  the  defendant  to  Neiper.  The  proof  is  that  they 
were  mainly  the  result  of  the  repetition  of  the  words  spoken  to  the  wit- 


SLANDER  AND  LIBEL.  325 

ness  Wands,  and  reports  of  other  persons.  It  was  not  until  a  consider- 
able time  after  the  plaintiff  was  informed  by  Neiper  what  the  de- 
fendant had  said  to  the  latter  that  he  began  to  be  ill,  and  his  illness 
commenced  immediately  after  the  communication  to  him  of  what  had 
been  said  by  La  Fayette  Wands.  At  that  time,  the  plaintiff  had  been 
informed  of  charges  made  by  Fuller  to  the  same  effect,  and  it  is  a  fair 
conclusion  upon  the  proof  that  he  then  knew  what  the  witness  Wands 
says  was  a  fact,  that  "the  story  was  all  over  the  country."  Under  these 
circumstances,  it  is  impossible  to  conclude  that  what  the  defendant 
stated  to  Neiper  produced  the  damages,  i  Starkie,  Sland.  &  L,.  205  ; 
Vicars  v.  Wilcocks,  8  East,  I  ;  Grain  v.  Petrie,  6  Hill,  522,  41  Am.  Dec. 


But  there  is  another  ground  upon  which  the  judgment  must  be  af- 
firmed. The  special  damages  relied  upon  are  not  of  such  a  nature  as 
will  support  the  action.  The  action  for  slander  is  given  by  the  law  as  a 
remedy  for  "injuries  affecting  a  man's  reputation  or  good  name  by  ma- 
licious, scandalous,  and  slanderous  words,  tending  to  his  damage  and 
derogation."  3  Bl.  Comm.  123  ;  Starkie,  Sland.  &  L.  Prelim.  Obs.  22- 
29;-  i  Starkie,  Sland.  &  L.  17,  18.  It  is  injuries  affecting  the  reputation 
only  which  are  the  subject  of  the  action.  In  the  case  of  slanderous 
words  actionable  per  Se,  the  law,  from  their  natural  and  immediate  tend- 
ency to  produce  injury,  adjudges  them  to  be  injurious,  though  no  special 
loss  or  damage  can  be  proved.  "But  with  regard  to  words  that  do  not 
apparently  and  upon  the  face  of  them  import  such  defamation  as  will  of 
course  be  injurious,  it  is  necessary  that  the  plaintiff  should  aver  some 
particular  damage  to  have  happened."  3  Bl.  Comm.  124.  As  to  what 
constitutes  special  damages,  Starkie  mentions  the  loss  of  a  marriage  ; 
loss  of  hospitable  gratuitous  entertainment;  preventing  a  servant  or 
bailiff  from  getting  a  place  ;  the  loss  of  customers  by  a  tradesman  ;  and 
says  that,  in  general,  'whenever  a  person  is  prevented  by  the  slander 
from  receiving  that  which  would  otherwise  be  conferred  upon  him, 
though  gratuitously,  it  is  sufficient,  i  Starkie,  Sland.  &  L.  195,  202  ; 
Cooke,  Defam.  22-24.  I"  Olmsted  v.  Miller,  i  Wend.  506,  it  was  held 
that  the  refusal  of  civil  entertainment  at  a  public  house  was  sufficient 
special  damage.  So  in  Williams  v.  Hill,  19  Wend.  305,  was  the  fact 
that  the  plaintiff  was  turned  away  from  the  house  of  her  uncle,  and 
charged  not  to  return  until  she  had  cleared  up  -her  character.  So,  in 
Beach  v.  Ranney,  supra,  was  the  circumstance  that  persons  who  had 
been  in  the  habit  of  doing  so,  refused  longer  to  provide  fuel,  clothing, 
etc.  2  Starkie,  Ev.  872,  873.  These  instances  are  sufficient  to  illustrate 
the  kind  of  special  damage  that  must  result  from  defamatory  words  not 
otherwise  actionable  to  make  them  so;  they  are  damages  produced  by 
or  through  impairing  the  reputation. 

It  would  be  highly  impolitic  to  hold  all  language,  wounding  the  feel- 
ings, and  affecting  unfavorably  the  health  and  ability  to  labor,  of  an- 
c'her,  a  ground  of  action  ;  for  that  would  be  to  make  the  right  of  action 


326  LAW  OF  TORTS. 

depend  often  upon  whether  the  sensibilities  of  a  person  spoken  of  are 
easily  excited  or  otherwise ;  his  strength  of  mind  to  disregard  abusive, 
insulting  remarks  concerning  him ;  and  his  physical  strength  and  ability 
to  bear  them.  Words  which  would  make  hardly  an  impression  on  most 
persons,  and  would  be  thought  by  them,  and  should  be  by  all,  unde- 
serving of  notice,  might  be  exceedingly  painful  to  some,  occasioning 
sickness  and  an  interruption  of  ability  to  attend  to  their  ordinary  avo- 
cations. There  must  be  some  limit  to  liability  for  words  not  actionable 
per  se,  both  as  to  the  words  and  the  kind  of  damages ;  and  a  clear  and 
wise  one  has  been  fixed  by  the  law.  The  words  must  be  defamatory  in 
their  nature;  and  must  in  fact  disparage  the  character;  and  this  dis- 
paragement must  be  evidenced  by  some  positive  loss  arising  therefrom, 
directly  and  legitimately,  as  a  fair  and  natural  result. 

In  the  present  case  the  words  were  defamatory,,  and  the  illness  and 
physical  prostration  of  the  plaintiff  may  be  assumed,  so  far  as  this  part 
of  the  case  is  concerned,  to  have  been  actually  produced  by  the  slander ; 
but  this  consequence  was  not,  in  a  legal  view,  a  natural,  ordinary  one, 
as  it  does  not  prove  that  the  plaintiff's  character  was  injured.  The 
slander  may  not  have  been  credited  by  or  had  the  slightest  influence 
upon  any  one  unfavorable  to  the  plaintiff ;  and  it  does  not  appear  that 
anybody  believed  it  or  treated  the  plaintiff  any  different  from  what  they 
would  otherwise  have  done  on  account  of  it.  The  cause  was  not  adapt- 
ed to  produce  the  result  which  is  claimed  to  be  special  damages.  Such 
an  effect  may,  and  sometimes  does,  follow  from  such  a  cause,  but  not 
ordinarily ;  and  the  rule  of  law  was  framed  in  reference  to  common 
and  usual  effects,  and  not  those  which  are  accidental  and  occasional. 

It  is  true  that  this  element  of  the  action  for  slander,  in  the  case  of 
words  not  actionable  of  themselves, — that  the  special  damages  must  flow 
from  impaired  reputation, — has  been  overlooked  in  several  modern 
cases,  and  loss  of  health,  and  consequent  incapacity  to  attend  to  busi- 
ness, held  sufficient  special  damage,  (Bradt  v.  Towsley,  13  Wend.  253  ; 
Fuller  v.  Fenner,  16  Barb.  333 ;)  but  these  cases  are  a  departure  from 
principle,  and  should  not  be  followed.  If  such  consequences  were  suf- 
ficient, it  would  not  be  necessary  to  allege  in  the  complaint  or  prove 
that  the  words  were  spoken  in  the  presence  of  a  third  person.  If  spo- 
ken directly  to  the  plaintiff,  in  the  presence  of  no  one  else,  he  might 
himself,  under  the  recent  law  allowing  parties  to  be  witnesses,  prove 
the  words  and  the  damages,  and  be  permitted  to  recover.  It  has  been 
regarded  as  necessary  to  an  action  that  the  words  should  be  published 
by  speaking  them  in  the  presence  of  some  person  other  than  the 
plaintiff,  both  in  the  case  of  words  actionable  and  those  not  actionable, 
i  Starkie,  Sland.  &  L.  360;  2  Starkie,  Sland.  &  L.  12;  Cooke,  Defam. 

87- 

Wrhere  there  is  no  proof  that  the  character  has  suffered  from  the 
words,  if  sickness  results,  it  must  be  attributable  to  apprehension  of  loss 
of  character ;  and  such  fear  of  harm  to  character,  with  resulting  sickness 


SLANDER  AND  LIBEL.  327 

and  bodily  prostration,  cannot  be  such  special  damage  as  the  law  re- 
quires for  the  action. 

ROOSEVELT,  J.,  dissented.    All  the  other  judges  concurring. 

Judgment  affirmed. 

(The  law  in  regard  to  liability  for  the  repetition  of  defamatory  words  is  well 
stated  in  Schoepflin  v.  Coffey,  162  N.  Y.  12,  56  N.  E.  502,  as  follows:  "One  who 
utters  a  slander,  or  prints  and  publishes  a  libel,  is  not  responsible  for  its  vol- 
untary and  unjustifiable  repetition,  without  his  authority  or  request,  by  others 
over  whom  he  has  no  control,  and  who  thereby  make  themselves  liable  to  the 
person  injured,  and  such  repetition  cannot  be  considered  in  law  a  necessary, 
natural,  and  probable  consequence  of  the  original  slander  or  libel.  The  rem- 
edy in  such  a  case  would  be  against  the  party  who  printed  and  published  the 
words  thus  spoken,  and  not  against  the  one  speaking  them,  as  a  person  is  not 
liable  for  the  independent  illegal  acts  of  third  persons  in  publishing  matters 
which  may  have  been  uttered  by  him,  unless  they  are  procured  by  him  to  be 
published,  or  he  performed  some  act  which  induced  their  publication.  Ward 
v.  Weeks,  7  Bing.  211;  Olmsted  v.  Brown,  12  Barb.  657.  The  repetition  of  de- 
famatory language  by  another  than  the  first  publisher  is  not  a  natural  conse- 
quence of  the  first  publication,  and  therefore  the  loss  resulting  from  such  repe- 
tition is  not  generally  attributable  to  the  first  publisher.  This  rule  is  based 
upon  the  principle  that  every  person  who  repeats  a  slander  is  responsible  for 
the  damage  caused  by  such  repetition,  and  that  such  damage  is  not  the  proxi- 
mate and  natural  consequence  of  the  first  publication  of  the  slander."  In  this 
case  the  repetition  was  by  a  libel  [publication  in  a  newspaper],  but  the  same 
principle  would  apply  where  the  repetition  was  by  spoken  words.  S.  P.  Hast- 
ings v.  Stetson,  126  Mass.  329,  30  Am.  Rep.  683 ;  Elmer  v.  Fessenden,  151  Mass. 
359,  24  N.  E.  208,  5  L.  R.  A.  724 ;  Davis  v.  Starrett,  97  Me.  568,  55  Atl.  516 ; 
Nicholson  v.  Rust  [Ky.]  52  S.  W.  933 ;  Merchants'  Ins.  Co.  v.  Buckner,  98  Fed. 
222,  39  C.  C.  A.  19. 

As  to  "slander  with  special  damage,"  see  also  Roberts  T.  Roberts,  5  B.  & 
S.  384,  and  Moody  v.  Baker,  5  Cow.  351,  in  the  text,  supra,  pp.  60,  109. 

It  is  also  not  actionable  per  se  to  call  a  man  a  blackleg  [Barnett  v.  Allen, 
3  H.  &  N.  376];  a  liar  [Kimmis  v.  Stiles,  44  Vt  351];  a  villain,  a  rascal,  and  a 
cheater  [Nelson  v.  Borchenius,  52  111.  236] ;  a  rogue  or  a  scoundrel  [Quinn  v. 
O'Gara,  2  E.  D.  Smith,  388;  Winter  v.  Sumvalt,  3  H.  &  J.  38;  Ward  v.  Weeks, 
7  Bing.  211]. 

The  "special  damage"  must  be  of  a  pecuniary  nature.  Pollard  v.  Lyon,  91 
U.  S.  225,  237,  23  L.  Ed.  308 ;  Chamberlain  v.  Boyd,  11  Q.  B.  D.  407.  See  Bas- 
sell  v.  Elmore,  48  N.  Y.  561;  Pettibone  v.  Simpson,  66  Barb.  492;  Lynch  v. 
Knight,  9  H.  L.  C.  577;  Davies  v.  Solomon,  L.  R.  7  Q.  B.  112;  Allsop  v.  Allsop, 
5  H.  &  N.  534;  Shafer  T.  Ahalt,  48  Md.  171,  30  Am.  Rep.  456.) 


328  LAW  OF  TORTS. 

II.  LIBEL. 

(68  Me.  295,  28  Am.  Rep.  50.) 

TILLSON  v.  ROBBINS  (in  part). 

(Supreme  Judicial  Court  of  Maine.    June  7,  1878.) 

1.  LIBEI^-WOBDS  EXPOSING  TO  PUBLIC  HATRED  AND  CONTEMPT. 

For  the  publication,  by  writing  or  printing,  of  a  charge  such  as,  If  be- 
lieved, would  naturally  tend  to  expose  a  person  to  public  hatred,  contempt, 
or  ridicule,  or  to  deprive  him  of  the  benefits  of  public  confidence  and  social 
intercourse,  an  action  may  be  maintained  by  him,  without  allegations  of 
special  damage,  or  of  any  fact  to  make  such  publication  import  a  charge 
of  crime. 

2.  DIFFERENCE  BETWEEN  LIBEL,  AND  SLANDER. 

There  are  many  kinds  of  charges  which  would  not  be  actionable  per  se 
If  spoken,  but  are  so  if  written  or  printed.  Illustrations  of  such  charges. 

On  exceptions. 

Action  by  Davis  Tillson  against  Levi  M.  Robbins  for  libel.  The  dec- 
laration alleged,  in  the  first  count,  the  publication  by  defendant  in  a 
certain  newspaper,  of  and  concerning  plaintiff,  of  the  following  words : 
"The  Hurricane  Vote.  Again  we  have  to  chronicle  most  atrocious  cor- 
ruption, intimidation,  and  fraud  in  the  Hurricane  Island  vote,  for  which 
Davis  Tillson  is  without  doubt  responsible,  as  he  was  last  year ;"  and 
in  the  second  count  the  publication  by  defendant  of  a  libel  of  and  con- 
cerning plaintiff  in  his  business  of  merchant  and  contractor,  in  the  same 
words,  with  the  addition  of  the  following:  "Hurricane  Island  is  all 
owned  by  Davis  Tillson,  an  intense  partisan  and  an  unscrupulous  poli- 
tician. It  is  leased  to  government,  and  contains  quarries  from  which 
is  taken  granite  for  public  buildings.  This  granite  is  bought  by  gov- 
ernment of  Tillson,  and  is  there  cut  by  men  who  receive  about  $3.50 
per  day.  On  all  expenditures  Tillson  has  a  gratuity  of  15  per  cent., 
for  which  he  renders  no  equivalent,  unless  the  lease  of  the  island  and 
its  facilities  be  deemed  such."  Each  count  contained  innuendoes,  ex- 
plaining these  words  as  meaning  that  plaintiff  had  been  guilty  of  the 
crime  of  corruption,  intimidation,  and  fraud  at  an  election  held  on  the 
island  mentioned ;  but  there  was  no  averment  of  the  fact  of  such  elec- 
tion, nor  any  colloquium  that  the  words  were  used  in  reference  thereto. 
Defendant  demurred  to  the  declaration.  The  demurrer  was  overruled, 
and  defendant  alleged  exceptions. 

BARROWS.  J.  The  defendant's  criticisms  upon  the  writ  to  which  he 
has  demurred  would  be  pertinent  if  the  case  were  one  of  mere  verbal 
slander.  But  in  respect  to  the  supposed  requirement  that,  in  order  to 
maintain  an  action  for  damages  where  no  crime  is  imputed,  special 
damage  must  be  alleged  and  proved,  a  distinction  has  been  long  and 
uniformly  maintained  between  mere  words  and  written  or  printed  slan- 


SLANDER  AND  LIBEL.  329 

der.  Holt,  Libel,  (ist  Am.  Ed.)  218-223.  Much  which,  if  only  spoken, 
might  be  passed  as  idle  blackguardism,  doing  no  discredit  save  to'  him 
who  utters  it,  when  invested  with  the  dignity  and  malignity  of  print  is 
capable,  by  reason  of  its  permanent  character  and  wide  dissemination, 
of  inflicting  serious  injury. 

The  cases,  ancient  and  modern,  where  this  distinction  has  been  re- 
garded, are  numerous.  A  reference  to  a  few  of  them  will  serve  all  the 
purposes  of  a  more  elaborate  discussion.  Lord  Holt  says:  "Scan- 
dalous matter  is  not  necessary  to  make  a  libel.  It  is  enough  if  the  de- 
fendant induce  an  ill  opinion  to  be  had  of  the  plaintiff,  or  to  make  him 
contemptible  and  ridiculous."  Cropp  v.  Tilney,  3  Salk.  226. 

To  say  of  a  man,  "He  is  a  dishonest  man,"  is  not  actionable  with- 
out special  damage  alleged  and  proved ;  but  to  publish  so,  or  to  put  it 
upon  posts,  is  actionable.  Austin  v.  Culpeper,  Skin.  124. 

In  Villers  v.  Monsley,  2  Wils.  403,  the  court  say :  "There  is  a  distinc- 
tion between  libels  and  words ;  a  libel  is  punishable  both  criminally  and 
by  action,  when  speaking  the  words  would  not  be  punishable  either  way. 
For  speaking  the  words  'rogue'  and  'rascal'  of  any  one  an  action  will 
not  lie,  but  if  those  words  were  written  and  published  of  any  one  an 
action  will  lie.  If  one  man  should  say  of  another  that  he  has  the  itch, 
without  more,  an  action  would  not  lie;  but  if  he  should  write  those 
words  of  another,  and  publish  them  maliciously,  as  in  the  present  case, 
no  doubt  but  the  action  well  lies." 

In  another  case,  where  the  defendant  had  applied  the  epithet  "vil- 
lain" to  the  plaintiff  in  a  letter  to  a  third  person,  and  the  plaintiff, 
though  alleging,  failed  to  prove,  any  special  damage,  the  court  ordered 
judgment  for  the  plaintiff,  expressing  the  opinion  that  "any  words  writ- 
ten and  published,  throwing  contumely  on  the  party,  are  actionable." 
Bell  v.  Stone,  i  Bos.  &  P.  331. 

In  one  of  Christian's  notes  to  Blackstone  mention  is  made  of  a  case 
where  a  young  lady  recovered  £4,000  damages  for  reflections  upon  her 
chastity,  published  in  a  newspaper,  though  she  could  not,  under  English 
laws,  without  alleging  special  damages,  such  as  loss  of  marriage  or  the 
like,  have  maintained  an  action  for  verbal  slander  containing  the  gross- 
est aspersions  upon  her  honor. 

In  J'Anson  v.  Stuart,  I  Term  R.  748,  it  was  held  that  to  print  of  any 
person  that  he  is  a  swindler  is  a  libel  and  actionable ;  for  it  is  not  nec- 
essary, in  order  to  maintain  an  action  for  libel,  that  the  imputation 
should  be  one  which,  if  spoken,  would  be  actionable  as  slander. 

In  Thorley  v.  Kerry,  4  Taunt.  355,  the  words  of  the  alleged  libel,  as 
declared  on,  were:  "I  pity  the  man  [meaning  the  plaintiff]  who  can 
so  far  forget  what  is  due  to  himself  and  others  as,  under  the  cloak  of 
religion,  to  deal  out  envy,  hatred,  malice,  uncharitableness,  and  false- 
hood." Mansfield,  chief  justice  of  the  common  pleas,  pronouncing  judg- 
ment for  the  plaintiff  in  the  exchequer  chamber  at  Easter  term,  1812, 
while  he  declared  himself  personally  disposed  to  repudiate  the  dis- 


330  LAW  OF  TORTS. 

tinction  between  written  and  unwritten  scandal,  says:  "I  do  not  now 
recapitulate  the  cases,  but  we  cannot,  in  opposition  to  them,  venture  to 
lay  down  at  this  day  that  no  action  can  be  maintained  for  any  words 
written  for  which  an  action  could  not  be  maintained  if  spoken."  For 
later  English  cases  maintaining  the  same  doctrine,  see  McGregor  v. 
Thwaites,  3  Barn.  &  C.  24 ;  Clement  v.  Chivis,  9  Barn.  &  C.  172 ;  Wood- 
ard  v.  Dowsing,  2  Man.  &  R.  74;  Shipley  v.  Todhunter,  7  Car.  &  P. 
680 ;  Parmiter  v.  Coupland,  6  Mees.  &  W.  105. 

The  American  cases  on  this  point  follow  in  the  same  line  with  the 
English.  Runkle  v.  Meyer,  3  Yeates,  518,  2  Am.  Dec.  393;  McCorkle 
v.  Binns,  5  Bin.  345,  6  Am.  Rep.  420;  McClurg  v.  Ross,  5  Bin.  218; 
Dexter  v.  Spear,  4  Mason,  115,  Fed.  Cas.  No.  3,867;  Dunn  v.  Winters, 

2  Humph.  512;  Clark  v.  Binney,  2  Pick.  113,  116;   Stow  v.  Converse, 

3  Conn.  325,  8  Am.  Dec.  189;    Hillhouse  v.  Dunning,  6  Conn.  391; 
Shelton  v.  Nance,  7  B.  Mon.  128 ;   Mayrant  v.  Richardson,  I  Nott  & 
McC.  347,  9  Am.  Dec.  707 ;  Colby  v.  Reynolds,  6  Vt.  489,  27  Am.  Dec. 

574-  % 

It  is  true  that  some  able  jurists  agree  with  Mansfield,  C.  J.,  in  doubt- 
ing whether  this  distinction  between  verbal  and  written  or  printed  slan- 
der is  well  founded  in  principle,  while  they  recognize  the  force  of  the 
authorities  which  sustain  it.  Others  maintain  it  upon  reason  as  well 
as  authority.  The  subject  is  discussed  with  numerous  references  to 
cases,  old  and  new,  English  and  American,  in  a  note  to  Steele  v.  South- 
wick,  in  i  Hare  &  W.  Lead.  Cas.  (5th  Ed.)  123. 

Steele  v.  Southwick  was  an  early  case  in  New  York,  decided  in  1812, 
and  reported  in  9  Johns.  214.  It  was  there  held  that  the  published  words 
complained  of,  if  they  did  not  import  a  charge  of  perjury  in  the  legal 
sense,  were  nevertheless  libelous,  as  holding  the  plaintiff  up  to  con- 
tempt and  ridicule,  as  regardless  of  his  obligations  as  a  witness  and 
unworthy  of  credit,  and  that  they  were  consequently  actionable.  We 
concur  entirely  in  the  remarks  of  the  court  that  "to  allow  the  press  to 
be  the  vehicle  of  malicious  ridicule  of  private  character  would  soon  de- 
prave the  moral  taste  of  the  community,  and  render  the  state  of  society 
miserable  and  barbarous.  It  is  true  that  such  publications  are  also  in- 
dictable as  leading  to  a  breach  of  the  peace,  but  the  civil  remedy  is 
equally  fit  and  appropriate."  We  do  not  mean  to  say  that  every  indict- 
able libel  would  be  a  good  foundation  for  a  civil  action. 

It  is  sufficient  to  dispose  of  this  demurrer  to  hold  that,  in  an  action  for 
written  or  printed  slander,  though  no  special  damage  is  alleged,  and  no 
averments  of  such  extrinsic  facts  as  might  be  requisite  to  make  the 
publication  in  question  import  a  charge  of  crime  are  made,  the  action 
is  nevertheless  maintainable  if  the  published  charge  is  such  as,  if  be- 
lieved, would  naturally  tend  to  expose  the  plaintiff  to  public  hatred, 
contempt,  or  ridicule,  or  deprive  him  of  the  benefits  of  public  confidence 
and  social  intercourse.  It  cannot  be  successfully  contended  that  the 
statements  alleged  in  this  writ  to  have  been  published  by  the  defendant 


SLANDER  AND   LIBEL.  331 

in  his  newspaper,  of  and  concerning  the  plaintiff,  would  not,  if  be- 
lieved, tend  strongly  to  deprive  him  of  public  confidence,  and  expose 
him  to  public  hatred  and  contempt 
Exceptions  overruled. 

APPLETON,  C.  J.,  and  WALTON,  DICKERSON,  DANFORTH, 
and  PETERS,  JJ.,  concurred. 

(Valuable  cases  on  the  nature  of  a  libel  are  Palmer  v.  Mahin,  120  Fed.  737, 
57  C.  C.  A.  41;  Mattice  v.  Wilcox,  147  N.  Y.  624,  42  N.  E.  270;  Gates  v.  New 
York  Recorder  Co.,  155  N.  Y.  228,  49  N.  E.  769;  Krug  v.  Pitass,  162  N.  Y.  154, 
56  N.  E.  526,  76  Am.  St.  Rep.  317;  Williams  v.  Fuller  [Neb.]  94  N.  W.  118; 
Quinn  v.  Prudential  Ins.  Co.,  116  Iowa,  522,  90  N.  W.  349;  Elmergreen  v. 
Horn,  115  Wis.  385,  91  N.  W.  973;  Bradley  v.  Cramer,  59  Wis.  309,  18  N.  W. 
268,  48  Am.  Rep.  511;  Lindley  v.  Horton,  27  Conn.  58;  Barr  v.  Moore,  87  Pa. 
385,  30  Am.  Rep.  367.) 


(121  N.  Y.  199,  23  N.  E.  1127,  8  L.  R.  A.  214,  18  Am.  St.  Rep.  810.) 

MOORE  v.  FRANCIS  et  al. 
(Court  of  Appeals  of  New  York.    April  15,  1890.) 

LIBEL— WORDS  AFFECTING  PLAINTIFF  IN  His  OCCUPATION — IMPUTING  INSANITY. 
The  publication  in  a  newspaper  of  a  statement  that  plaintiff,  employed 
as  teller  in  a  bank,  became  mentally  deranged  by  reason  of  overwork,  and 
that  while  in  that  condition  he  made  injurious  statements  regarding  the 
bank's  affairs,  which  caused  it  trouble,  is  libelous  per  se,  as  tending  to 
injure  him  in  his  employment. 

Appeal  from  Supreme  Court,  General  Term,  Third  Department. 

Action  by  Amasa  R.  Moore  against  John  M.  Francis  and  others  for 
libel.  Verdict  for  defendants,  and  from  a  judgment  of  the  general  term 
affirming  the  judgment  on  the  verdict,  and  an  order  denying  a  motion  to 
set  aside  the  same,  and  for  a  new  trial,  plaintiff  now  appeals. 

ANDREWS,  J.  The  alleged  libelous  publication  which  is  the  subject 
of  this  action  was  contained  in  the  Troy  Times  of  September  15,  1882, 
in  an  article  written  on  the  occasion  of  rumors  of  trouble  in  the  financial 
condition  of  the  Manufacturers'  National  Bank  of  Troy,  of  which  the 
plaintiff  was  at  the  time  of  the  publication,  and  for  18  years  prior  there- 
to had  been,  teller.  The  rumors  referred  to  had  caused  a  "run"  upon  the 
bank ;  and  it  is  claimed  by  the  defendants,  and  it  is  the  fair  conclusion 
from  the  evidence,  that  the  primary  motive  of  the  article  was  to  allay 
public  excitement  on  the  subject.  That  part  of  the  publication  charged 
to  be  libelous  is  as  follows :  "Several  weeks  ago  it  was  rumored  that 
Amasa  Moore,  the  teller  of  the  bank,  had  tendered  his  resignation.  Ru- 
mors at  once  began  to  circulate.  A  reporter  inquired  of  Cashier  Wel- 
lington if  it  was  true  that  the  teller  had  resigned,  and  received  in  reply 


332  LAW  OF  TORTS. 

the  answer  that  Mr.  Moore  was  on  his  vacation.  More  than  this  the 
cashier  would  not  say.  A  rumor  was  circulated  that  Mr.  Moore  was 
suffering  from  overwork,  and  that  his  mental  condition  was  not  en- 
tirely good.  Next  came  reports  that  Cashier  Wellington  was  finan- 
cially involved,  and  that  the  bank  was  in  trouble.  A  Times  reporter  at 
once  sought  an  interview  with  President  Weed  of  the  bank,  and  found 
him  and  Directors  Morrison,  Cowee,  Bardwell,  and  others  in  consulta- 
tion. They  said  that  the  bank  was  entirely  sound,  with  a  clear  surplus 
of  $100,000;  that  there  had  been  a  little  trouble  in  its  affairs,  occasioned 
by  the  mental  derangement  of  Teller  Moore ;  and  that  the  latter's  state- 
ments, when  he  was  probably  not  responsible  for  what  he  said,  had 
caused  some  bad  rumors."  The  complaint  is  in  the  usual  form,  and 
charges  that  the  publication  was  false  and  malicious,  made  with  intent 
to  injure  the  plaintiff  in  his  good  name  and  credit  in  his  occupation  as 
bank  teller,  and  to  cause  it  to  be  believed  that,  by  reason  of  mental  de- 
rangement, he  had  become  incompetent  to  discharge  his  duties,  and  had 
caused  injury  to  the  bank,  etc.  The  court  on  the  trial  was  requested  by 
the  plaintiff's  counsel  to  rule,  as  a  question  of  law,  that  the  publication 
was  libelous.  The  court  refused,  but  submitted  the  question  to  the  jury. 
The  jury  found  a  verdict  for  the  defendants,  and,  as  the  verdict  may 
have  proceeded  upon  the  finding  that  the  article  was  not  libelous,  the 
question  is  presented  whether  it  was  per  se  libelous.  If  it  was,  the 
court  erred  in  leaving  the  question  to  the  jury. 

It  is  the  settled  law  of  this  state  that,  in  a  civil  action  for  libel,  where 
the  publication  is  admitted,  and  the  words  are  unambiguous  and  ad- 
mit of  but  one  sense,  the  question  of  libel  or  no  libel  is  one  of  law, 
which  the  court  must  decide.  Snyder  v.  Andrews,  6  Barb.  43;  Mat- 
thews v.  Beach,  5  Sandf.  256;  Hunt  v.  Bennett,  19  N.  Y.  173;  Lewis 
v.  Chapman,  16  N.  Y.  369;  Kingsbury  v.  Bradstreet  Co.,  116  N.  Y. 
211,  22  N.  E.  365.  Of  course,  an  error  in  submitting  the  question  to  the 
jury  would  be  harmless  if  their  finding  that  the  publication  was  not 
libelous  was  in  accordance  with  its  legal  character.  The  import  of  the 
article,  so  far  as  it  bears  upon  the  plaintiff,  is  plain  and  unequivocal. 
The  words  amount  to  a  distinct  affirmation — First,  that  the  plaintiff  was 
teller  of  the  bank;  second,  that  while  acting  in  this  capacity  he  be- 
came mentally  deranged ;  third,  that  the  derangement  was  caused  by 
overwork;  fourth,  that  while  teller,  and  suffering  from  this  mental 
alienation,  he  made  injurious  statements  in  respect  to  the  bank's  af- 
fairs which  occasioned  it  trouble.  The  cases  of  actionable  slander  were 
defined  by  Chief  Justice  De  Grey  in  the  leading  case  of  Onslow  v. 
Home,  3  Wils.  177;  and  the  classification  made  in  that  case  has  been 
generally  followed  in  England  and  this  country.  According  to  this 
classification,  slanderous  words  are  those  which  (i)  import  a  charge  of 
some  punishable  crime;  or  (2)  impute  some  offensive  disease  which 
would  tend  to  deprive  a  person  of  society;  or  (3)  which  tend  to  injure  a 
party  in  his  trade,  occupation,  or  business;  or  (4)  which  have  produced 


SLANDER   AND   LIBEL.  333 

some  special  damage.  Defamatory  words,  in  common  parlance,  are 
such  as  impute  some  moral  delinquency  or  some  disreputable  conduct  to 
the  person  of  whom  they  are  spoken.  Actions  of  slander,  for  the  most 
part,  are  founded  upon  such  imputations.  But  the  action  lies  in  some 
cases  where  the  words  impute  no  criminal  offense;  where  no  attack 
is  made  upon  the  moral  character,  nor  any  charge  of  personal  dishonor. 
The  first  and  larger  class  of  actions  are  those  brought  for  the  vindica- 
tion of  reputation,  in  its  strict  sense,  against  damaging  and  calumnious 
aspersions.  The  other  class  fall,  for  the  most  part  at  least,  within  the 
third  specification  in  the  opinion  of  Chief  Justice  De  Grey,  of  words 
which  tend  to  injure  one  in  his  trade  or  occupation.  The  case  of  words 
affecting  the  credit  of  a  trader,  such  as  imputing  bankruptcy  or  in- 
solvency, is  an  illustration.  The  action  is  maintainable  in  such  a  case, 
although  no  fraud  or  dishonesty  is  charged,  and  although  the  words 
were  spoken  without  actual  malice.  The  law  allows  this  form  of  action 
not  only  to  protect  a  man's  character  as  such,  but  to  protect  him  in  his 
occupation,  also,  against  injurious  imputations.  It  recognizes  the  right 
of  a  man  to  live,  and  the  necessity  of  labor,  and  will  not  permit  one  to 
assail  by  words  the  pecuniary  credit  of  another,  except  at  the  peril, 
in  case  they  are  untrue,  of  answering  in  damages.  The  principle  is 
clearly  stated  by  Bayley,  J.,  in  Whittaker  v.  Bradley,  7  Dowl.  &  R.  649 ; 
"Whatever  words  have  a  tendency  to  hurt,  or  are  calculated  to  preju- 
dice, a  man  who  seeks  his  livelihood  by  any  trade  or  business,  are  ac- 
tionable." Where  proved  to  have  been  spoken  in  relation  thereto,  the 
action  is  supported ;  and  unless  the  defendant  shows  a  lawful  excuse, 
the  plaintiff  is  entitled  to  recover  without  allegation  or  proof  of  special 
damage,  because  both  the  falsity  of  the  words  and  resulting  damage 
are  presumed.  Craft  v.  Boite,  I  Saund.  243,  note ;  Steele  v.  Southwick, 
I  Amer.  Lead.  Cas.  135. 

The  authorities  tend  to  support  the  'proposition  that  spoken  words 
imputing  insanity  are  actionable  per  se  when  spoken  of  one  in  his 
trade  or  occupation,  but  not  otherwise,  without  proof  of  special  damage. 
Morgan  v.  Lingen,  8  Law  T.  (N.  S.)  800 ;  Joannes  v.  Burt,  6  Allen,  236, 
83  Am.  Dec.  625.  The  imputation  of  insanity  in  a  written  or  printed 
publication  is  a  fortiori  libelous  where  it  would  constitute  slander  if 
the  words  were  spoken.  Written  words  are  libelous  in  all  cases  where, 
if  spoken,  they  would  be  actionable;  but  they  may  be  libelous  where 
they  would  not  support  an  action  for  oral  slander.  There  are  many 
definitions  of  "libel."  The  one  by  Hamilton  in  his  argument  in  People 
v.  Croswell,  3  Johns.  Cas.  354,  viz.,  "a  censorious  or  ridiculing  writing, 
picture,  or  sign,  made  with  mischievous  and  malicious  intent  towards 
government,  magistrates,  or  individuals,"  has  often  been  referred  to 
with  approval.  But,  unless  the  word  "censorious"  is  given  a  much 
broader  signification  than  strictly  belongs  to  it,  the  definition  would 
not  seem  to  comprehend  all  cases  of  libelous  words.  The  word  "libel," 
as  expounded  in  the  cases,  is  not  limited  to  written  or  printed  words 


334  LAW  OF  TORTS. 

which  defame  a  man,  in  the  ordinary  sense,  or  which  impute  blame  or 
moral  turpitude,  or  which  criticise  or  censure  him.  In  the  case  before 
referred  to,  words  affecting  a  man  injuriously  in  his  trade  or  occupa- 
tion may  be  libelous  although  they  convey  no  imputation  upon  his  char- 
acter. Words,  says  Starkie,  are  libelous  if  they  affect  a  person  in  his 
profession,  trade,  or  business,  "by  imputing  to  him  any  kind  of  fraud, 
dishonesty,  misconduct,  incapacity,  unfitness,  or  want  of  any  necessary 
qualification  in  the  exercise  thereof."  Starkie,  Sland.  &  L.  §  188.  The 
cases  of  libel  founded  upon  the  imputation  of  insanity  are  few.  The 
declaration  in  Morgan  v.  Lingen,  supra,  contained  a  count  for  libel, 
and  also  for  verbal  slander.  The  alleged  libel  was  a  letter  written  by 
the  defendant  in  which  he  states  that  "he  had  no  doubt  that  the  plain- 
tiff's mind  was  affected,  and  that  seriously,"  and  also  that  "she  had  a  de- 
lusion," etc.  It  appeared  that  the  defendant  had  also  orally  stated,  in 
substance,  the  same  thing.  It  was  claimed  that  the  writing  was  justi- 
fied. The  plaintiff  was  a  governess.  Martin,  B.,  in  summing  up  to  the 
jury,  said  that  "a  statement  in  writing  that  a  lady's  mind  is  affected,  and 
that  seriously,  is,  without  explanation,  prima  facie  a  libel."  In  respect  to 
the  slander,  he  said  "he  thought  there  was  no  evidence  of  any  special 
damage.  The  jury  must,  therefore,  consider  whether  the  defendant  ever 
intended  to  use  the  expressions  he  did  with  reference  to  the  plaintiff's 
profession  of  governess."  In  Perkins  v.  Mitchell,  31  Barb.  465,  it  was 
held  to  be  libelous  to  publish  of  another  "that  he  is  insane,  and  a  fit  per- 
son to  be  sent  to  the  lunatic  asylum ;"  Emott,  J.,  saying :  "Upon  this 
point  the  case  is  clear."  Rex  v.  Harvey,  2  Barn.  &  C.  257,  was  an  in- 
formation for  libel  for  publishing  in  a  newspaper  that  the  king  "labor- 
ed under  mental  insanity,  and  it  stated  that  the  writer  communicated 
the  fact  from  authority."  The  judge  charged  that  the  publication  was  a 
libel,  and  the  charge  was  held  to  be  correct.  The  foregoing  are  the 
only  cases  we  have  noticed  upon  the  point  whether  a  written  imputation 
of  insanity  constitutes  a  libel.  Several  of  the  text-writers  state  that  to 
charge  in  writing  that  a  man  is  insane  is  libelous.  Add.  Torts,  168 ; 
Townsh.  Sland.  &  L.  §  177;  Starkie,  Sland.  &  L.  §  164;  Odgers,  Sland. 
&  L.  p.  23. 

The  publication  now  in  question  is  not  simply  an  assertion  that  the 
plaintiff  is  or  has  been  affected  with  "mental  derangement,"  disconnected 
with  any  special  circumstances.  The  assertion  was  made  to  account  for 
the  trouble  to  which  the  bank  had  been  subjected  by  reason  of  injurious 
statements  made  by  the  plaintiff  while  in  its  employment.  Words,  to  be 
actionable  on  the  ground  that  they  affect  a  man  in  his  trade  or  occupa- 
tion, must,  as  is  said,  touch  him  in  such  trade  or  occupation ;  that  is, 
they  must  be  shown,  directly  or  by  inference,  to  have  been  spoken  of 
him  in  relation  thereto,  and  to  be  such  as  would  tend  to  prejudice  him 
therein.  Sanderson  v.  Caldwell,  45  N.  Y.  405,  6  Am.  Rep.  105,  and  cases 
cited.  The  publication  did,  we  think,  touch  the  plaintiff  in  respect  to  his 
occupation  as  bank  teller.  It  imputed  mental  derangement  while  en- 


SLANDER  AND   LIBEL.  335 

gaged  in  his  business  as  teller,  which  affected  him  in  the  discharge  of  his 
duties.  The  words  conveyed  no  imputation  upon  the  plaintiff's  hon- 
esty, fidelity,  or  general  capacity.  They  attributed  to  him  a  misfortune 
brought  upon  him  by  an  overzealous  application  in  his  employment. 
While  the  statement  was  calculated  to  excite  sympathy,  and  even  re- 
spect, for  the  plaintiff,  it  nevertheless  was  calculated,  also,  to  injure 
him  in  his  character  and  employment  as  a  teller.  On  common  under- 
standing, mental  derangement  has  usually  a  much  more  serious  sig- 
nificance than  mere  physical  disease.  There  can  be  no  doubt  that  the 
imputation  of  insanity  against  a  man  employed  in  a  position  of  trust  and 
confidence,  such  as  that  of  a  bank  teller,  whether  the  insanity  is  tem- 
porary or  not,  although  accompanied  by  the  explanation  that  it  was 
induced  by  overwork,  is  calculated  to  injure  and  prejudice  him  in  that 
employment,  and  especially  where  the  statement  is  added  that,  in  con- 
sequence of  his  conduct  in  that  condition,  the  bank  has  been  involved  in 
trouble.  The  directors  of  a  bank  would  naturally  hesitate  to  employ 
a  person  as  teller  whose  mind  had  once  given  way  under  stress  of  sim- 
ilar duties,  and  run  the  risk  of  a  recurrence  of  the  malady.  The  pub- 
lication was,  we  think,  defamatory,  in  a  legal  sense,  although  it  imputed 
no  crime,  and  subjected  the  plaintiff  to  no  disgrace,  reproach,  or  ob- 
loquy, for  the  reason  that  its  tendency  was  to  subject  the  plaintiff  to 
temporal  loss,  and  deprive  him  of  those  advantages  and  opportunities 
as  a  member  of  the  community  which  are  open  to  those  who  have  both  a 
sound  mind  and  a  sound  body.  The  trial  judge,  therefore,  erred  in  not 
ruling  the  question  of  libel  as  one  of  law.  The  evidence  renders  it 
clear  that  no  actual  injury  to  the  plaintiff  was  intended  by  the  defend- 
ants; but  it  is  not  a  legal  excuse  that  defamatory  matter  was  pub- 
lished accidentally  or  inadvertently,  or  with  good  motives,  and  in  an 
honest  belief  in  its  truth. 

The  judgment  should  be  reversed,  and  a  new  trial  granted. 

All  concur. 

("To  publish  of  a  minister  that  he  is  immoral;  of  a  lawyer  that  he  is  an  ig- 
noramus, a  drunkard,  or  a  cheat;  of  an  architect  or  a  teller  of  a  bank  that  he 
is  crazy;  of  a  physician  that  he  is  a  humbug,  or  a  quack,  or  a  butcher,  or  a 
blockhead,  or  a  quacksalver,  or  an  empiric,  or  a  mountebank,  or  that  he  is  no 
scholar,  or  that  his  diploma  is  worthless, — has  been  held  actionable  per  se  as 
touching  his  vocation."  Bornmann  v.  Star  Co.,  174  N.  Y.  212,  219,  66  N.  E.  723. 
citing  many  cases.) 


336  LAW  OF  TORTS. 

(117  Mass.  539.) 

HOMER  v.  ENGELHARDT. 

(Supreme  Judicial  Court  of  Massachusetts.    May  8,  1875.) 

LIBEL— WORDS  AFFECTING  PLAINTIFF  IN  His  BUSINESS. 

The  publication  in  a  newspaper  of  a  notice  to  the  public  that  plaintiff,  a 
saloon-keeper,  to  get  rid  of  a  just  claim  in  court,  set  up  as  a  defense  .an 
existing  prohibitory  liquor  law,  under  which  no  action  for  the  price  of 
liquors  sold  in  violation  thereof  could  be  maintained,  is  not  libelous,  as  he 
had  a  legal  right  to  make  such  defense. 

Appeal  from  Superior  Court. 

Action  of  tort  by  Valentine  Homer  against  Michael  Engelhardt  for 
libel.  The  declaration  alleged  that  defendant  caused  to  be  published  in 
a  certain  newspaper,  printed  in  the  German  language,  published  in  Bos- 
ton, "a  false  and  malicious  libel  concerning  plaintiff,  a  copy  of  which 
is  hereto  annexed,  as  follows:  'Dem  deutschen  Publicum  zur  Nach- 
richt  dass  der  Wirth  Valentine  Homer,  1863  Washington  Str.,  um  einer 
gerechten  Forderung  zu  entgehen,  als  Vertheidigung  vor  Gericht  das 
bestehende  Liquor-Gesetz  anfuhrte.  Wir  halten  es  fur  unsere  Pflicht 
solche  Falle  zu  publiziren  um  Bierbrauer  und  Liquorhandler  zu  warnen. 
M.  Engelhardt  &  Co,' —  which,  translated  into  the  English  language, 
is  as  follows :  'Information  to  the  German  public.  The  saloon-keeper, 
Valentine  Homer,  No.  1863  Washington  street,  to  get  rid  of  a  just 
claim  in  court,  set  up  as  a  defense  the  existing  prohibitory  liquor  law. 
We  feel  it  our  duty  to  make  such  conduct  publicly  known,  in  order  to 
caution  beer-brewers  and  liquor  dealers.  M.  Engelhardt  &  Co.'  "  De- 
fendant demurred  to  the  declaration,  on  the  ground  that  it  did  not  state 
a  legal  cause  of  action,  inasmuch  as  it  contained  no  actionable  words  or 
other  cause  of  action.  The  demurrer  was  sustained,  and  judgment  or- 
dered for  defendant.  Plaintiff  appealed. 

ENDICOTT,  J.  No  action  can  be  maintained  in  this  commonwealth 
for  the  price  of  liquor  sold  in  violation  of  law.  St.  1869,  c.  415,  §  63. 
If  such  action  is  brought,  it  is  the  right  of  the  defendant  to  set  up  in 
his  answer  this  provision  of  the  statute.  It  is  a  perfectly  legitimate  and 
legal  defense,  and  stands  as  other  defenses  stand  which  the  law  inter- 
poses to  defeat  what,  under  other  circumstances,  would  be  a  just  de- 
mand. This  publication  does  not  charge  that  the  plaintiff  falsely,  or 
even  unsuccessfully,  set  up  as  a  defense  the  existing  prohibitory  law. 
The  gist  of  the  damage  is  simply  that  he  did  set  up  such  a  defense.  The 
plaintiff  having  the  right  to  make  this  defense,  it  is  not  libelous  to  pub- 
lish the  statement  that  he  had  done  so.  The  demurrer  was  rightly  sus- 
tained in  the  court  below. 

Judgment  affirmed. 

(It  is  not  libelous  to  charge  a  man  with  doing  that  which  he  may  do  law- 
fully [Foot  v.  Pitt,  83  App.  Div.  76,  82  N.  Y.  Supp.  4G4];  as,  e.  g.,  with  pleading 


SLANDER  AND   LIBEL.  337 

the  statute  of  limitations  [Bennett  v.  Williamson,  4  Sandf.  60];  or  with  being 
a  hog,  because  he  would  not  trade  at  home  and  build  up  his  own  town  [Urban 
v.  Helmick,  15  Wash.  155»  45  Pac.  747;  see  Goldberger  y.  Philadelphia  Grocer 
Pub.  Co.  (C.  C.)  42  Fed.  42].) 


III.  MALICE  IN  LIBEL  AND  SLANDER. 

(4  Barn.  &  C.  247.) 

BROMAGB  et  al.  v.  PROSSER  (in  part). 
(Court  of  King's  Bench.     Easter  Term,  1825.) 

1.  SLANDER— MALICE. 

In  an  ordinary  case  of  libel  or  slander  (i.  e.,  one  which  Is  not  a  case  of 
privileged  communication)  the  law  implies  such  malice  as  is  necessary  to 
maintain  the  action,  such  legal  malice  being  deemed  to  exist  when  a  wrong- 
ful act  is  done  intentionally,  without  just  cause  or  excuse.  It  is,  therefore, 
not  proper  to  submit  this  question  of  malice  in  such  cases  to  the  jury. 
But  where  the  defamatory  words  are  published  on  a  privileged  occasion, 
and  are  therefore  prima  facie  excusable,  malice  in  fact  must  be  proved  by 
the  plaintiff  and  found  by  the  jury,  in  order  to  sustain  the  action. 

2.  SAME. 

In  an  action  for  slander  in  saying  that  plaintiff's  bank  had  stopped,  it 
appeared  that  in  answer  to  a  question  whether  such  was  the  fact  defend- 
ant had  said  it  was  true;  that  he  was  told  so;  that  it  was  so  reported. 
The  judge  instructed  the  jury  that  if  they  thought  the  words  were  not 
spoken  maliciously  the  defendant  ought  to  have  their  verdict  The  jury 
having  found  a  verdict  for  the  defendant,  held,  on  a  motion  for  a  new 
trial,  that  this  instruction,  leaving  the  question  of  malice  to  the  jury,  was 
erroneous. 

Motion  for  a  new  trial. 

Action  for  slander  for  words  spoken  of  plaintiffs  in  their  trade  and 
business  as  bankers.  At  the  trial  the  jury  found  a  verdict  for  defendant. 
A  rule  nisi  for  a  new  trial  was  obtained  by  plaintiffs  on  the  ground  that 
the  judge  at  the  trial  improperly  left  to  the  jury  the  question  of  malice. 

BAYLEY,  J.  This  was  an  action  for  slander.  The  plaintiffs  were 
bankers  at  Monmouth,  and  the  charge  was  that,  in  answer  to  a  question 
from  one  Lewis  Watkins,  whether  he,  the  defendant,  had  said  that  the 
plaintiffs'  bank  had  stopped,  the  defendant's  answer  was,  "It  was  true ; 
he  had  been  told  so."  The  evidence  was  that  Watkins  met  defendant, 
and  said,  "I  hear  that  you  say  the  bank  of  Bromage  and  Snead,  at  Mon- 
mouth, has  stopped.  Is  is  true?"  Defendant  said,  "Yes,  it  is;  I  was 
told  so."  He  added,  "It  was  so  reported  at  Crickhowell,  and  nobody 
would  take  their  bills,  and  that  he  had  come  to  town  in  consequence  of 
it  himself."  Watkins  said,  "You  had  better  take  care  what  you  say; 
you  first  brought  the  news  to  town,  and  told  Mr.  John  Thomas  of  it." 
CHASE  (2o  ED.)— 22 


338  LAW  OF  TORTS. 

Defendant  replied,  "I  was  told  so."  Defendant  had  been  told  at  Crick- 
howell  there  was  a  run  upon  plaintiffs'  bank,  but  not  that  it  had 
stopped,  or  that  nobody  would  take  their  bills,  and  what  he  said  went 
greatly  beyond  what  he  had  heard.  The  learned  judge  considered  the 
words  as  proved,  and  he  does  not  appear  to  have  treated  it  as  a  case  of 
privileged  communication ;  but,  as  the  defendant-  did  not  appear  to  be 
actuated  by  any  ill  will  against  the  plaintiffs,  he  told  the  jury  that,  if 
they  thought  the  words  were  not  spoken  maliciously,  though  they  might 
unfortunately  have  produced  injury  to  the  plaintiffs,  the  defendant 
ought  to  have  their  verdict ;  but  if  they  thought  them  spoken  malicious- 
ly, they  should  find  for  the  plaintiff.  The  jury  having  found  for  the 
defendant,  the  question,  upon  a  motion  for  a  new  trial,  was  upon  the 
propriety  of  this  direction. 

If,  in  an  ordinary  case  of  slander,  (not  a  case  of  privileged  communica- 
tion,) want  of  malice  is  a  question  of  fact  for  the  consideration  of  a  jury, 
the  direction  was  right;  but  if,  in  such  a  case,  the  law  implies  such 
malice  as  is  necessary  to  maintain  the  action,  it  is  the  duty  of  the  judge 
to  withdraw  the  question  of  malice  from  the  consideration  of  the  jury ; 
and  it  appears  to  us  that  the  direction  in  this  case  was  wrong.  That 
malice,  in  some  sense,  is  the  gist  of  the  action,  and  that,  therefore,  the 
manner  and  occasion  of  speaking  the  words  is  admissible  in  evidence 
to  show  they  were  not  spoken  with  malice,  is  said  to  have  been  agreed 
(either  by  all  the  judges,  or,  at  least,  by  the  four  who  thought  the  truth 
might  be  given  in  evidence  on  the  general  issue)  in  Smith  v.  Richardson, 
Willes,  24 ;  and  it  is  laid  down  i  Com.  Dig.  tit.  "Action  upon  the  Case 
for  Defamation,"  g  5,  that  the  declaration  must  show  a  malicious  intent 
in  the  defendant;  and  there  are  some  other  very  useful  elementary 
books  in  which  it  is  said  that  malice  is  the  gist  of  the  action ;  but  in  what 
sense  the  words  "malice"  or  "malicious  intent"  are  here  to  be  under- 
stood, whether  in  the  popular  sense,  or  in  the  sense  the  law  puts  upon 
those  expressions,  none  of  these  authorities  state.  "Malice,"  in  common 
acceptation,  means  ill  will  against  a  person;  but  in  its  legal  sense  it 
means  a  wrongful  act,  done  intentionally,  without  just  cause  or  excuse. 
If  I  give  a  perfect  stranger  a  blow  likely  to  produce  death,  I  do  it  of 
malice,  because  I  do  it  intentionally,  and  without  just  cause  or  excuse. 
If  I  maim  cattle  without  knowing  whose  they  are,  if  I  poison  a  fishery 
without  knowing  the  owner,  I  do  it  of  malice,  because  it  is  a  wrongful 
act,  and  done  intentionally.  If  I  am  arraigned  for  felony,  and  willfully 
stand  mute,  I  am  said  to  do  it  of  malice,  because  it  is  intentional,  and 
without  just  cause  or  excuse.  Russ.  Crimes,  614,  note  I.  And  if  I  tra- 
duce a  man  whether  I  know  him  or  not,  and  whether  I  intend  to  do 
him  an  injury  or  not,  I  apprehend  the  law  considers  it  as  done  of  malice, 
because  it  is  wrongful  and  intentional.  It  equally  works  an  injury 
whether!  meant  to  produce  an  injury  or  not,  and,  if  I  had  no  legal  ex- 
cuse for  the  slander,  why  is  he  not  to  have  a  remedy  against  me  for  the 
injury  it  produces?  And  I  apprehend  the  law  recognizes  the  distinction 


SLANDER   AND   LIBEL.  339 

between  these  two  descriptions  of  malice,  malice  in  fact  and  malice  in 
law,  in  actions  of  slander.  In  an  ordinary  action  for  words,  it  is  suffi- 
cient to  charge  that  the  defendant  spoke  them  falsely;  it  is  not  neces- 
sary to  state  that  they  were  spoken  maliciously.  This  is  so  laid  down 
in  Style,  392,  and  was  adjudged  upon  error  in  Mercer  v.  Sparks,  Noy, 
35.  The  objection  there  was  that  the  words  were  not  charged  to  have 
been  spoken  maliciously,  but  the  court  answered  that  the  words  were 
themselves  malicious  and  slanderous,  and  therefore  the  judgment  was 
affirmed.  But  in  actions  for  such  slander  as  is  prima  facie  excusable 
on  account  of  speaking  or  writing  it,  as  in  the  case  of  servants'  charac- 
ters, confidential  advice,  or  communications  to  persons  who  ask  it,  or 
have  a  right  to  expect  it,  malice  in  fact  must  be  proved  by  the  plaintiff ; 
and  in  Edmonson  v.  Stevenson,  Bull.  N.  P.  8,  Lord  Mansfield  takes  a 
distinction  between  these  and  ordinary  actions  of  slander.  In  Weathers- 
ton  v.  Hawkins,  I  Term  R.  no,  where  a  master,  who  had  given  a  serv- 
ant a  character  which  prevented  his  being  hired,  gave  his  brother-in- 
law,  who  applied  to  him  upon  the  subject,  a  detail  by  letter  of  certain 
instances  in  which  the  servant  had  defrauded  him,  Wood,  who  argued 
for  the  plaintiff,  insisted  that  this  case  did  not  differ  from  the  case  of 
common  libels;  that  it  had  the  two  essential  ingredients,  slander  and 
falsehood ;  that  it  was  not  necessary  to  prove  express  malice ;  if  the 
matter  is  slanderous,  malice  is  implied,  it  is  sufficient  to  prove  publica- 
tion ;  the  motives  of  the  party  publishing  are  never  gone  into,  and  that 
the  same  doctrine  held  in  action  for  words, — no  express  malice  need  be 
proved.  Lord  Mansfield  said  the  general  rules  are  laid  down  as  Mr. 
Wood  has  stated,  but  to  every  libel  there  may  be  an  implied  justifica- 
tion from  the  occasion;  and  Buller,  J.,  said  this  is  an  exception  to  the 
general  rule,  on  account  of  the  occasion  of  writing.  In  actions  of  this 
kind,  the  plaintiff  must  prove  the  words  "malicious"  as  well  as  "false." 
But  in  an  ordinary  action  for  a  libel  or  for  words,  though  evidence  of 
malice  may  be  given  to  increase  the  damages,  it  never  is  considered  as 
essential,  nor  is  there  any  instance  of  a  verdict  for  a  defendant  on  the 
ground  of  want  of  malice.  Numberless  occasions  must  have  occurred, 
(particularly  in  cases  where  a  defendant  only  repeated  what  he  had  heard 
before,  but  without  naming  the  author,)  upon  which,  if  that  were  a 
tenable  ground,  verdicts  would  have  been  sought  for  and  obtained, 
and  the  absence  of  any  such  instance  is  a  proof  of  what  has  been  the 
general  and  universal  opinion  upon  the  point.  Had  it  been  noticed  to 
the  jury  how  the  defendant  came  to  speak  the  words,  and  had  it  been  left 
to  them  as  a  previous  question,  whether  the  defendant  understood. 
Watkins  as  asking  for  information  for  his  own  guidance,  and  that  the 
defendant  spoke  what  he  did  to  Watkins  merely  by  way  of  honest  ad- 
vice to  regulate  his  conduct,  the  question  of  malice  in  fact  would  have 
been  proper  as  a  second  question  to  the  jury,  if  their  minds  were  in 
favor  of  the  defendant  upon  the  first;  but  as  the  previous  question  I 
have  mentioned  was  never  put  to  the  jury,  but  this  was  treated  as  an  or- 


340  LAW  OF  TORTS. 

dinary  case  of  slander,  we  are  of  opinion  that  the  question  of  malice 
ought  not  to  have  been  left  to  the  jury.  We  are  therefore  of  opinion 
that  the  rule  for  a  new  trial  must  be  absolute. 

Rule  absolute. 

("Malice  in  law"  exists  in  cases  of  libel  or  slander,  when  there  is  an  absence 
of  any  legal  excuse  for  the  false  and  defamatory  publication.  Holmes  v.  Jones, 
147  N.  Y.  59,  41  N.  E.  409,  49  Am.  St.  Rep.  G46;  Krug  v.  Pitass,  162  N.  Y.  154, 
5G  N.  B.  52G,  76  Am.  St  Rep.  317;  Barr  v.  Moore,  87  Pa.  385,  30  Am.  Rep.  367; 
Benton  v.  State,  59  N.  J.  Law,  551,  36  Atl.  1041.  Such  excuse  lacking,  the 
words  are  actionable,  although  spoken  or  published  accidentally  or  inadvertent- 
ly, or  with  an  honest  belief  in  their  truth,  or  from  commendable  motives,  as, 
e.  g.,  to  save  a  friend  from  harm.  Id.;  Byam  v.  Collins,  111  N.  Y.  143,  19  N. 
B.  75,  2  L.  R.  A.  129,  7  Am.  St  Rep.  726.  When  one  meditates  publishing  a 
defamatory  charge,  but  cannot  prove  it  to  be  true,  and  there  is  no  "privileged 
occasion"  for  publishing  it,  "silence  is  golden.") 


IV.  PUBLICATION. 

(13  Gray,  304,  74  Am.  Dec.  632.) 

SHEFFILL  et  ux.  v.  VAN  DEUSEN  et  ux. 

(Supreme  Judicial  Court  of  Massachusetts.     September  Term,  1859.) 

SLANDEB— PUBLICATION  OF  DEFAMATORY  WORDS. 

No  action  can  be  maintained  for  the  speaking  of  defamatory  words  to 
the  person  of  whom  they  are  spoken  only,  no  one  else  being  present  or 
within  hearing.  That  they  were  spoken  in  a  public  place  is  immaterial. 

Exceptions  from  court  of  common  pleas. 

Action  of  tort  by  Hiram  Sheffill  and  wife  against  George  J.  Van 
Deusen  and  wife  for  slander.  The  judge  before  whom  the  case  was 
tried  signed  a  bill  of  exceptions,  as  follows :  "The  words  claimed  to 
have  been  slanderous  were  spoken,  if  at  all,  at  the  dwelling-house  of  the 
defendants,  and  in  that  part  thereof  called  the  'bakery,'  where  bread 
and  other  articles  were  sold  to  customers ;  and  were  spoken  by  Mrs. 
Van  Deusen  to  Mrs.  Sheffill.  The  defendants  asked  the  court  to  in- 
struct the  jury  that  if  the  words  alleged  in  the  plaintiffs'  declaration 
were  spoken  to  Mrs.  Sheffill,  and  no  other  person  but  Mrs.  Sheffill  and 
Mrs.  Van  Deusen  were  present,  there  was  no  such  publication  of  the 
words  as  would  maintain  the  action.  The  court  declined  so  to  instruct, 
but  did  instruct  the  jury  that,  if  the  words  were  publicly  uttered  in  the 
bakery  of  the  defendants,  there  was  a  sufficient  publication,  though  the 
plaintiff  has  not  shown  that  any  other  person  was  present,  at  the  time 
they  were  spoken,  but  Mrs.  Sheffill  and  Mrs.  Van  Deusen.  The  jury 
returned  a  verdict  for  the  plaintiffs,  and  the  defendants  expect." 

BIGELOW,  J.  Proof  of  the  publication  of  the  defamatory  words 
alleged  in  the  declaration  was  essential  to  the  maintenance  of  this  action. 


SLANDER  AND   LIBEL.  341 

Slander  consists  in  uttering  words  to  the  injury  of  a  person's  reputa- 
tion. No  such  injury  is  done  when  the  words  are  uttered  only  to  the 
person  concerning  whom  they  are  spoken,  no  one  else  being  present  or 
within  hearing.  It  is  damage  done  to  character  in  the  opinion  of  other 
men,  and  not  in  a  party's  self-estimation,  which  constitutes  the  material 
element  in  an  action  for  verbal  slander.  Even  in  a  civil  action  for  libel, 
evidence  that  the  defendant  wrote  and  sent  a  sealed  letter  to  the  plain- 
tiff, containing  defamatory  matter,  was  held  insufficient  proof  of  pub- 
lication ;  although  it  would  be  otherwise  in  an  indictment  for  libel,  be- 
cause such  writings  tend  directly  to  a  breach  of  the  peace.  So,  too,  it 
must  be  shown  that  the  words  were  spoken  in  the  presence  of  some  one 
who  understood  them.  If  spoken  in  a  foreign  language,  which  no  one 
present  understood,  no  action  will  lie  therefor.  Edwards  v.  Wooton, 
12  Coke,  35  ;  Hickes'  Case,  Poph.  139,  and  Hob.  215  ;  Wheeler  and  Ap- 
pleton's  Case,  Godb.  340;  Phillips  v.  Jansen,  2  Esp.  624;  Lyle  v.  Cla- 
son,  i  Caines,  581 ;  Ham.  N.  P.  287.  It  is  quite  immaterial,  in  the 
present  case,  that  the  words  were  spoken  in  a  public  place.  The  real 
question  for  the  jury  was,  were  they  so  spoken  as  to  have  been  heard 
by  a  third  person?  The  defendants  were  therefore  entitled  to  the  in- 
structions for  which  they  asked. 
Exceptions  sustained. 

(See  Schmuck  v.  Hill  [Neb.]  96  N.  W.  158;  Spaits  v.  Poundstone,  87  Ind.  522, 
44  Am.  Rep.  773;  Seip  v.  Deshler,  170  Pa.  334,  32  Atl.  1032;  Haase  v.  State, 
53  N.  J.  Law,  34,  20  Atl.  751.  It  is  a  sufficient  publication  of  a  criminal  libel 
to  send  it  to  the  man  himself  who  is  defamed.  Warnock  v.  Mitchell  [C.  C.]  43 
Fed.  428.) 


([1891]  1  Q.  B.  524.) 

PULLMAN  et  al.  v.  WALTER  HILL  &  CO..  Limited. 
(Court  of  Appeal.     December  19,  1890.) 

LIB  EL— PUBLICATION  . 

In  an  action  for  libel  it  appeared  that  the  alleged  libel  was  contained  In 
a  letter  respecting  plaintiffs,  two  of  the  members  of  a  partnership,  written 
on  behalf  of  defendants,  a  limited  company,  by  their  managing  director, 
and  sent  by  mail  in  an  envelope  addressed  to  the  firm;  the  writer  not 
knowing  that  there  were  other  partners  in  the  firm.  The  letter  was  dic- 
tated by  him  to  a  clerk,  who  took  down  the  words  in  short-hand  and  then 
wrote  them  out  in  full  by  means  of  a  type-writing  machine;  and  the  let- 
ter thus  written  was  copied  by  an  office-boy  in  a  copying-press.  When  it 
reached  its  destination,  it  was  opened  by  a  clerk  of  the  firm,  in  the  ordi- 
nary course  of  business,  and  was  read  by  two  other  clerks  of  the  firm. 
Held,  that  there  was  a  publication  of  the  letter,  both  to  defendants'  clerks 
and  to  plaintiffs'  clerks,  and  that  neither  was  on  a  privileged  occasion. 

Motion  for  new  trial. 

Action  for  libel.    At  the  trial  it  appeared  that  plaintiffs  were  members 
of  a  partnership  firm  of  R.  &  J.  Pullman,  in  which  there  were  three  other 


342  LAW  OF  TORTS. 

partners.  The  place  of  business  of  the  firm  was  No.  17  Greek  street, 
Soho.  The  plaintiffs  were  the  owners  of  some  property  in  the  Borough 
road,  which  they  had  contracted,  in  1887,  to  sell  to  Messrs.  Day  &  Mar- 
tin. The  plaintiffs  remained  in  possession  of  the  property  for  some  time, 
and  agreed  to  let  a  hoarding,  which  was  erected  upon  the  property,  at  a 
rent  to  the  defendants,  who  were  advertising  agents,  for  the  display  of 
advertisements.  In  1889  a  dispute  arose  between  the  plaintiffs  and  Day 
&  Martin,  who  were  building  upon  the  land,  as  to  which  of  the  two  were 
entitled  to  the  rent  of  the  hoarding;  and  on  September-  14,  1889,  the 
defendants,  after  some  prior  correspondence,  wrote  the  following  let- 
ter: "Messrs.  Pullman  &  Co.,  17  Greek  St.,  Soho.  Re  Boro'  Road. 
Dear  Sirs :  We  must  call  your  serious  attention  to  this  matter.  The 
builders  state  distinctly  that  you  had  no  right  to  this  money  whatever ; 
consequently  it  has  been  obtained  from  us  under  false  pretenses.  We 
await  your  reply  by  return  of  post.  Yours,  faithfully,  [Signed]  Wal- 
ter Hill  &  Co.,  Limited."  This  letter  was  dictated  by  the  defendants' 
managing  director  to  a  short-hand  clerk,  who  transcribed  it  by  a  type- 
writing machine.  The  type-written  letter  was  then  signed  by  the  man- 
aging director,  and,  having  been  press-copied  by  an  office-boy,  was 
sent  by  post  in  an  envelope  addressed  to  "Messrs.  Pullman  &  Co.,  17 
Greek  street,  Soho."  The  defendants  did  not  know  that  there  were  any 
other  partners  in  the  firm  besides  the  plaintiffs.  The  letter  was  opened 
by  a  clerk  of  the  firm,  in  the  ordinary  course  of  business,  and  was  read 
by  two  other  clerks.  The  plaintiffs  brought  this  action  for  libel.  The 
defendants  contended  that  there  was  no  publication,  and  that,  if  there 
were,  the  occasion  was  privileged.  The  learned  judge  held  that  there 
was  no  publication,  that  the  occasion  was  privileged,  and  that  there  was 
no  evidence  of  malice.  He  therefore  nonsuited  the  plaintiffs,  and  they 
jnoved  for  a  new  trial. 

ESHER,  M.  R.  Two  points  were  decided  by  the  learned  judge:  (i) 
That  there  had  been  no  publication  of  the  letter  which  is  alleged  to  be 
a  libel;  (2)  that,  if  there  had  been  publication,  the  occasion  was  privi- 
leged. The  question  whether  the  letter  is  or  is  not  a  libel  is  for  the  jury, 
if  it  is  capable  of  being  considered  an  imputation  on  the  character  of  the 
plaintiffs.  If  there  is  a  new  trial,  it  will  be  open  to  the  jury  to  consider 
whether  there  is  a  libel,  and  what  the  damages  are.  The  learned  judge 
withdrew  the  case  from  the  jury. 

The  first  question  is  whether,  assuming  the  letter  to  contain  defama- 
tory matter,  there  has  been  a  publication  of  it.  What  is  the  meaning  of 
"publication?"  The  making  known  the  defamatory  matter  after  it  has 
been  written  to  some  person  other  than  the  person  to  whom  it  is  written. 
If  the  statement  is  sent  straight  to  the  person  of  whom  it  is  written, 
there  is  no  publication  of  it ;  for  you  cannot  publish  a  libel  of  a  man  to 
hirnseif.  If  there  were  no  publication,  the  question  whether  the  occasion 
was  privileged  does  not  arise.  If  a  letter  is  not  communicated  to  any 


SLANDER  AND  LIBEL.  343 

one  but  the  person  to  whom  it  is  written,  there  is  no  publication  of  it. 
And  if  the  writer  of  a  letter  locks  it  up  in  his  own  desk,  and  a  thief 
comes  and  breaks  open  the  desk  and  takes  away  the  letter,  I  should  say 
that  would  not  be  a  publication.  If  the  writer  of  a  letter  shows  it  to 
his  own  clerk  in  order  that  the  clerk  may  copy  it  for  him,  is  that  a  pub- 
lication of  the  letter?  Certainly  it  is  showing  it  to  a  third  person. 
The  writer  cannot  say,  to  the  person  to  whom  the  letter  is  addressed, 
"I  have  shown  it  to  you,  and  to  no  one  else."  I  cannot,  therefore,  feel 
any  doubt  that,  if  the  writer  of  a  letter  shows  it  to  any  person  other 
than  the  person  to  whom  it  is  written,  he  publishes  it.  If  he  wishes 
not  to  publish  it,  he  must,  so  far  as  he  possibly  can,  keep  it  to  himself, 
or  he  must  send  it  himself  straight  to  the  person  to  whom  it  is  written. 
There  was  therefore  in  this  case  a  publication  to  the  type- writer. 

Then  arises  the  question  of  privilege,  and  that  is  whether  the  occa- 
sion on  which  the  letter  was  published  was  a  privileged  occasion.  An 
occasion  is  privileged  when  the  person  who  makes  the  communication 
has  a  moral  duty  to  make  it  to  the  person  to  whom  he  does  make  it, 
and  the  person  who  receives  it  has  an  interest  in  hearing  it.  Both 
these  conditions  must  exist  in  order  that  the  occasion  may  be  privileged. 
An  ordinary  instance  of  a  privileged  occasion  is  in  the  giving  the  char- 
acter of  a  servant.  It  is  not  the  legal  duty  of  the  master  to  give  a 
character  to  the  servant,  but  it  is  his  moral  duty  to  do  so;  and  the 
person  who  receives  the  character  has  an  interest  in  having  it.  There- 
fore the  occasion  is  privileged,  because  the  one  person  has  a  duty  and 
the  other  has  an  interest.  The  privilege  exists  as  against  the  person 
who  is  libeled ;  it  is  not  a  question  of  privilege,  as  between  the  person 
who  makes  and  the  person  who  receives  the  communication.  The  priv- 
ilege is  as  against  the  person  who  is  libeled.  Can  the  communica- 
tion of  the  libel  by  the  defendants  in  the  present  case  to  the  type- 
writer be  brought  within  the  rule  of  privilege  as  against  the  plaintiffs, 
the  persons  libeled?  What  interest  had  the  type-writer  in  hearing 
or  seeing  the  communication?  Clearly,  she  had  none.  Therefore  the 
case  does  not  fall  within  the  rule. 

Then,  again,  as  to  the  publication  at  the  other  end, — I  mean  when  the 
letter  was  delivered.  The  letter  was  not  directed  to  the  plaintiffs  in 
their  individual  capacity;  it  was  directed  to  a  firm  of  which  they  were 
members.  The  senders  of  the  letter  no  doubt  believed  that  it  would 
go  to  the  plaintiffs,  but  it  was  directed  to  a  firm.  When  the  letter  ar- 
rived it  was  opened  by  a  clerk  in  the  employment  of  the  plaintiffs'  firm, 
and  was  seen  by  three  of  the  clerks  in  their  office.  If  the  letter  had 
been  directed  to  the  plaintiffs  in  their  private  capacity,  in  all  probability 
it  would  not  have  been  opened  by  a  clerk.  But  mercantile  firms,  and 
large  tradesmen  generally,  depute  some  clerk  to  open  business  letters 
addressed  to  them,  The  sender  of  the  letter  had  put  it  out  of  his  own 
control,  and  he  had  directed  it  in  such  a  manner  that  it  might  possibly 
be  opened  by  a  clerk  of  the  firm  to  which  it  was  addressed.  I  agree 


344  LAW  OF  TORTS. 

that,  under  such  circumstances,  there  was  a  publication  of  the  letter 
by  the  sender  of  it,  and  in  this  case,  also,  the  occasion  was  not  priv- 
ileged, for  the  same  reasons  as  in  the  former  case.  There  were  there- 
fore two  publications  of  the  letter,  and  neither  of  them  was  privileged. 
And  there  being  no  privilege,  no  evidence  of  express  malice  was  re- 
quired; the  publication  of  itself  implied  malice.  I  think  the  learned 
judge  was  misled.  I  do  not  think  that  the  necessities  or  the  luxuries 
of  business  can  alter  the  law  of  England.  If  a  merchant  wishes  to  write 
a  letter  containing  defamatory  matter,  and  to  keep  a  copy  of  the  letter, 
he  had  better  make  the  copy  himself.  If  a  company  have  deputed  a 
person  to  write  a  letter  containing  libelous  matter  on  their  behalf,  they 
will  be  liable  for  his  acts.  He  ought  to  write  such  a  letter  himself,  and 
to  copy  it  himself,  and,  if  he  copies  it  into  a  book,  he  ought  to  keep  the 
book  in  his  own  custody. 

I  think  there  ought  to  be  a  new  trial. 

LOPES,  L.  J.,  and  KAY,  L.  J.,  concurred. 

Order  for  new  trial. 

(This  decision  has  been  followed  In  this  country  In  the  case  of  Gambrill  v. 
Schooley,  93  Md.  48,  48  Atl.  730,  52  L.  R.  A.  87,  86  Am.  St.  Rep.  414,  and  the 
cases  of  Boxsius  v.  Goblet  FrSres  [1894]  1  Q.  B.  843,  and  Owen  v.  Ogilvie  Pub. 
Co.,  32  App.  Div.  465,  53  N.  Y.  Supp.  1033,  which  are  seemingly  inconsistent, 
are  distinguished.  The  doctrine  is  also  asserted  in  Sun  Life  Assur.  Co.  v. 
Bailey  [Va.]  44  S.  E.  692.  In  Williamson  v.  Freer,  L.  R.  9  C.  P.  393,  the  send- 
ing of  a  telegram  containing  libelous  matter  was  held  a  publication,  as 
being  a  disclosure  to  the  clerks  in  the  telegraph  offices  [S.  P.  Monson  v. 
Lathrop,  96  Wis.  386,  71  N.  W.  596,  65  Am.  St  Rep.  54 ;  cf.  Peterson  v.  West- 
ern Union  Tel.  Co.,  72  Minn.  41,  74.N.  W.  1022,  40  L.  R.  A.  661,  71  Am.  St.  Rep. 
461];  so  as  to  the  sending  through  the  mails  of  a  postal  card,  unless  its  con- 
tents were  so  expressed  that  those  -through  whose  hands  it  passed  would  not 
understand  its  application  [Sadgrove  v.  Hole  (1901)  2  K.  B.  1;  Robinson  v. 
Jones,  4  L.  R.  Ir.  391 ;  contra,  Steele  v.  Edwards,  15  Ohio  Cir.  Ct  B.  52] ;  so  a 
person  has  been  held  liable  for  sending  through  the  mails  letters  having  libelous 
matter  printed  upon  the  face  of  the  envelopes  [Muetze  v.  Tuteur,  77  Wis.  236, 
46  N.  W.  123,  9  L.  R.  A.  86,  20  Am.  St  Rep.  115].  A  vendor  of  a  newspaper 
containing  a  libel  was  held  not  to  have  published  the  libel  upon  his  proving 
that  he  did  not  know  the  paper  contained  a  libel,  that  his  ignorance  was  not 
due  to  any  negligence  on  his  part,  and  that  he  did  not  know,  and  had  no  ground 
for  supposing,  that  the  newspaper  was  likely  to  contain  libelous  matter  [Em- 
mens  v.  Pottle,  16  Q.  B.  D.  354];  but  the  proprietors  of  a  circulating  library, 
who  failed  to  prove  similar  freedom  from  negligence  on  their  part,  were  held 
liable  for  circulating  copies  of  a  book  containing  libelous  matter,  though  they 
did  not  know  the  book  had  such  contents  [Vizetelly  v.  Mudie's  Library  (1900) 
2  Q.  B.  170.] 

A  statement  by  a  husband  to  his  wife  of  a  defamatory  accusation  against  a 
third  person  is  not  deemed  a  publication,  Wennbak  v.  Morgan,  20  Q.  B.  D.  635. 
For  the  general  rule  as  to  what  constitutes  a  publication,  see  Marble  v.  Chapin, 
132  Mass.  225;  Youmans  v.  Smith,  153  N.  Y.  214,  47  N.  E.  265;  Bacon  v.  Rail- 
road Co.,  55  Mich.  224,  21  N.  W.  324,  54  Am.  Rep.  372;  Young  v.  Clegg.  93  Ind. 
371;  Mielenz  v.  Quasdorf,  68  Iowa,  726,  28  N.  W.  41;  Sproul  v.  Pillsbury,  72 
Me.  20.) 


SLANDER  AND   LIBEL.  345 


V.  DEFENSE  OF  "JUSTIFICATION." 

(19  Kan.  417,  27  Am.  Rep.  127.) 

CASTLE  v.  HOUSTON  (in  part). 

(Supreme  Court  of  Kansas.    July  Term,  1877.) 

1.  LIBEL — JUSTIFICATION. 

In  civil  actions  for  libel,  proof  of  the  truth  of  the  matter  charged  as 
defamatory  is  a  complete  justification,  without  showing  that  it  was  pub- 
lished with  good  motives  and  for  justifiable  ends. 

2.  SAME— CONSTITUTIONAL  PEOVISION. 

The  constitution  of  Kansas  provides  (Bill  of  Rights,  §  11)  that,  "in  all 
civil  or  criminal  actions  for  libel,  the  truth  may  be  given  in  evidence  to 
the  jury,  and,  if  it  shall'appear  that  the  alleged  libelous  matter  was  pub- 
lished for  justifiable  ends,  the  accused  shall  be  acquitted."  Held,  in  con- 
struction of  this  provision,  in  view  of  the  former  rule  of  law,  that  proof 
of  the  truth  of  the  matter  charged  as  defamatory  was  a  complete  justifi- 
cation in  a  civil  action  for  libel;  and  that  proof  that  the  matter  was  pub- 
lished for  justifiable  ends  in  order  that  "the  accused  party  shall  be  ac- 
quitted," was  limited  to  criminal  prosecutions. 

Error  from  District  Court,  Leavenworth  County. 

Action  for  libel.  A  verdict  for  plaintiff,  on  trial  in  the  district  court, 
was  set  aside  by  that  court  on  motion,  and  a  new  trial  granted.  From 
the  order  granting  the  new  trial  plaintiff  appealed,  and  brought  the  case 
to  the  supreme  court  on  error. 

HORTON,  C.  J.  This  was  an  action  commenced  in  the  district 
court  of  Leavenworth  county  to  recover  damages  for  libel.  The  peti- 
tion alleges,  in  substance,  that  the  defendant  was  editor,  proprietor,  and 
publisher  of  the  Leavenworth  Daily  Commercial,  a  newspaper  printed 
in  the  city  of  Leavenworth,  and  that  on  the  2oth  of  January,  1875,  there 
was  published  in  said  paper,  of  and  concerning  the  plaintiff,  a  certain 
false  and  malicious  libel,  in  words  as  follows,  to-wit:  "The  insurance 
department  of  our  state  will  in  all  probability  be  subject  to  a  thorough 
investigation,  as  a  bill  has  already  been  introduced  into  the  senate  to 
investigate.  This  is  right.  Every  insurance  company  in  the  state  is 
willing  an  investigation  be  h?d.  Mr.  Russell,  ex-superintendent,  in- 
vites it,  and  the  present  superintendent  is  anxious  for  the  same.  There 
is  a  cadaverous  looking  individual  of  Leavenworth  loafing  around  here 
who  seems  exceedingly  anxious  for  an  investigation,  in  hopes  that  the 
superintendent  will  be  done  away  with,  and  the  department  presided 
over  by  the  auditor.  A  clerkship  in  the  dim  distance  makes  him  en- 
thuse. I  cannot  blame  Castle  much,  knowing  that  board  and  other 
bills  too  numerous  to  mention  have  been  pressing  him  for  some  time, 
and  then,  doubtless,  the  Northwestern  •  Life  would  be  glad  to  hear 
from  him,  as  he  was  published  as  a  defaulter  to  that  company.  He  is 
one  of  the  most  promising  individuals  (to  his  landlords)  I  know  of,  and 


346  LAW  OF  TORTS. 

the  cry  of  fraud  from  such  a  completely  played-out  insurance  agent 
has  but  little  bearing  with  an  intelligent  body  of  legislators.  If  his 
caliber  was  as  large  as  his  bore,  he  would  be  a  success.  Jack." 

In  answer  to  the  petition,  defendant  set  up  three  defenses :  First,  an 
admission  that  the  article  complained  of  was  published  in  defendant's 
paper  of  and  concerning  the  plaintiff,  but  denied  that  the  same  was 
published  with  malice ;  second,  that  defendant  had  no  personal  knowl- 
edge of  the  publication  of  the  article  at  the  time  of  its  publication, 
with  the  further  allegation  that  the  several  matters  and  things  in  the 
article  complained  of  as  defamatory  were  true,  and  published  for  justi- 
fiable ends  and  purposes ;  and,  third,  a  general  denial.  To  the  answer 
plaintiff  filed  a  reply,  denying  generally,  save  and  except  what  was 
admitted,  all  the  allegations  in  the  answer.  When  the  case  came  on  for 
trial,  it  was  submitted  to  a  jury,  and  plaintiff  obtained  a  verdict  of 
$1,250;  whereupon  defendant  gave  notice  of  motion  for  a  new  trial, 
which  was  filed,  and,  after  being  argued,  was  by  the  court  sustained, 
upon  the  ground  that  the  court  had  erred  in  its  instructions  to  the  jury. 
The  plaintiff  excepted,  and  has  brought  the  case  here  for  review. 

It  appears  from  the  record  that  the  court  below  granted  the  motion 
for  a  new  trial  on  the  ground  that  the  jury  was  misdirected  by  the  fol- 
lowing instructions,  viz. :  "The  fact  of  the  language  being  true  is  not 
alone  an  answer  to  the  charge,  but  can  only  be  shown  in  mitigation  of 
damages.  It  is  not  a  defense  simply  to  show  the  truth  of  the  matter 
published,  but  the  party  must  go  further,  and  show  that  it  was  not  only 
true,  but  that  he  acted  from  good  motives  and  for  a  justifiable  end, 
and  that  he  had  some  purpose  in  view  that  was  justifiable.  If  that  be 
the  case,  if  he  acts  honestly,  for  good  purposes  and  justifiable  ends,  and 
what  he  says  is  true,  then  he  is  to  be  excused  or  acquitted." 

In  this  condition  of  the  case,  we  must  first  inquire  whether  the  in- 
structions above  set  forth  were  improperly  given  on  the  trial.  If  er- 
roneous as  a  statement  of  the  law  controlling  the  case,  they  certainly 
may  have  misled  the  jury.  If  correct  in  principle,  and  applicable  undei 
the  issues  presented,  the  court  erred  in  granting  a  new  trial,  for  the 
reason  given.  An  examination  of  this  question  will  lead  to  a  brief  re- 
view of  the  law  of  libel  in  both  criminal  and  civil  prosecutions,  so  far 
as  to  consider  and  determine  when  a  defendant  may  be  permitted  to 
give  the  truth  in  evidence  as  a  full  justification  of  alleged  libelous  mat- 
ter. It  was  at  one  time  the  rule  of  the  common  law  that  the  truth  of 
the  charge,  however  honorable  and  praiseworthy  the  motives  of  the 
publisher,  could  not  be  given  in  evidence  in  a  criminal  prosecution. 
Hence  originated  the  familiar  maxim,  "The  greater  the  truth,  the 
greater  the  libel."  This  doctrine  was  based  upon  the  theory  that, 
where  it  was  honestly  believed  a  particular  person  had  committed  a 
crime,  it  was  the  duty  of  him  who  so  believed  or  so  knew  to  cause  the 
offender  to  be  prosecuted  and  brought  to  justice,  as  in  a  settled  state 
of  government  a  party  aggrieved  ought  to  complain  for  an  injury  to 


SLANDER  AND   LIBEL.  347 

the  settled  course  of  law;  and  to  neglect  this  duty,  and  publish  the  of- 
fense to  the  world,  thereby  bringing  the  party  published  into  disgrace 
or  ridicule  without  an  opportunity  to  show  by  the  judgment  of  a  court 
that  he  was  innocent,  was  libelous ;  and,  if  the  matter  charged  was  in 
fact  true  (thereby  insuring  social  ostracism),  the  injury  caused  by  the 
publication  was  much  greater  than  where  the  publication  was  false. 
A  false  publication,  it  was  contended,  could  be  explained  and  exposed ; 
a  true  one  was  difficult  to  explain  away.  As  an  additional  reason  for 
this  rule,  it  was  also  held  that  such  publications,  even  if  true,  were  pro- 
vocative of  breaches  of  the  peace,  and  the  greater  the  truth  contained 
therein  the  greater  the  liability  of  hostile  meetings  therefrom.  That 
this  was  the  true  rule  of  the  common  law  has  been  denied  by  many  of 
the  ablest  jurists  in  both  England  and  America,  who  maintained  that 
the  liberty  of  the  press  consisted  in  the  right  to  publish,  with  impunity, 
truth  with  good  motives  and  for  justifiable  ends,  whether  it  respected 
government,  magistracy,  or  individuals.  It  certainly  was  derived  from 
the  polluted  source  of  the  star  chamber,  and  was  considered  at  the 
time  an  innovation,  but,  like  some  other  precedents,  although  arbi- 
trarily and  unjustly  established,  it  came  to  be  followed  generally  by  the 
courts,  and  sustained  as  the  law  of  the  land.  In  1804,  in  the  state  of 
New  York,  this  principle  of  law  was  recognized  and  asserted  in  the 
case  of  People  v.  Crosswell.  In  that  case  the  defendant  was  prose- 
cuted for  libel  for  having  published  in  his  newspaper  at  Hudson,  in 
that  state,  called  the  "Wasp,"  the  charge  against  Thomas  Jefferson, 
then  president,  that  he  (Jefferson)  paid  Callender  for  calling  Washing- 
ton a  traitor,  a  robber,  and  a  perjurer.  The  defendant,  through  his 
counsel,  Alexander  Hamilton,  applied  to  the  judge  at  the  circuit  to 
put  off  the  trial  to  obtain  the  testimony  of  Callender  to  prove  the  pub- 
lication true.  Lewis,  C.  J.,  presiding,  denied  the  motion,  because  the 
testimony  was  inadmissible,  as  the  truth  of  the  facts  charged  as  libel- 
ous did  not  amount  to  a  complete  justification.  3  Johns.  Cas.  337. 
This  case  attracted  so  much  attention  that,  after  a  verdict  of  guilty 
had  been  rendered,  and  while  the  case  was  in  the  courts  of  New  York 
on  a  motion  for  a  new  trial,  the  legislature  of  that  state  passed  a  law 
providing  that,  in  every  prosecution  for  writing  or  publishing  any 
libel,  it  should  be  lawful  for  the  defendant  upon  the  trial  to  give  in 
evidence,  in  his  defense,  the  truth  of  the  matter  contained  in  the  pub- 
lication charged  as  libelous,  and  that  such  evidence  should  not  be  a 
justification,  unless  it  should  be  further  made  satisfactorily  to  appear 
that  the  matter  charged  as  libelous  was  published  with  good  motives 
and  for  justifiable  ends.  Since  the  adoption  of  the  New  York  statute 
declaratory  of  the  law  of  libel  in  criminal  actions,  nearly  every  state 
in  the  Union  has  made  the  subject  a  matter  of  constitutional  or  statu- 
tory provision.  The  wise  framers  of  our  own  constitution,  peculiarly 
acquainted  with  the  beneficial  influences  of  free  discussion  and  a  free 
press,  as  participants  in  the  historical  incidents  and  conflicts  surround- 


348  LAW  OF  TORTS. 

ing  the  settlement  of  the  territory  of  Kansas,  modified  the  tyrannical 
and  harsh  rule  of  the  common  law  as  stated  in  the  star  chamber  of 
England,  and  thereafter  generally  understood  and  interpreted,  by  pro- 
viding, in  section  n  of  our  bill  of  rights,  that  "the  liberty  of  the  press 
shall  be  inviolate,  and  all  persons  may  freely  speak,  write,  or  publish 
their  sentiments  on  all  subjects,  being  responsible  for  the  abuse  of 
such  right ;  and,  in  all  civil  or  criminal  actions  for  libel,  the  truth  may 
be  given  in  evidence  to  the  jury,  and,  if  it  shall  appear  that  the  alleged 
libelous  matter  was  published  for  justifiable  ends,  the  accused  party 
shall  be  acquitted."  Nevertheless  these  framers,  in  a  spirit  of  wisdom, 
and  to  preserve  order,  were  careful  not  to  give,  as  against  the  inter- 
ests of  the  public,  complete  license  even  to  the  truth,  when  published 
for  the  gratification  of  the  worst  of  passions,  or  to  affect  the  peace  and 
happiness  of  society.  They  prescribe  that  the  accused  should  be  ac- 
quitted, not  on  proof  of  the  truth  of  the  charge  alone,  but  it  should  fur- 
ther appear  the  publication  was  made  for  justifiable  ends.  Following 
the  intendment  of  the  constitution,  the  legislature  afterwards  provided, 
in  the  act  relating  to  crimes  and  punishments,  that,  "in  all  prosecu- 
tions or  indictments  for  libel,  the  truth  thereof  may  be  given  in  evi- 
dence to  the  jury ;  and  if  it  appears  to  them  that  the  matter  charged  as 
libelous  was  true,  and  was  published  with  good  motives  and  for  justi- 
fiable ends,  the  defendant  shall  be  acquitted."  Section  272,  Gen.  St. 
P-  376. 

But  the  law-makers,  jealous  of  the  liberty  of  the  press,  and  fearing 
the  construction  of  the  law  by  the  courts  in  such  prosecution,  further 
provided,  in  a  succeeding  section  of  the  same  act,  that,  "in  all  indict- 
ments or  prosecutions  for  libel,  the  jury,  after  having  received  the 
direction  of  the  court,  shall  have  the  right  to  determine,  at  their  dis- 
cretion, the  law  and  the  fact.n  Section  275,  Gen.  St.  p.  377. 

While  the  rule  of  the  common  law,  as  generally  applied,  was  so  ex- 
acting and  rigorous  to  the  defense  of  justification  in  criminal  prosecu- 
tions for  libel,  a  different  doctrine  was  applicable  in  civil  cases.  In  the 
case  of  King  v.  Root,  4  Wend.  114,  139,  21  Am.  Dec.  102,  Chancellor 
Walworth  clearly  states  this  difference  as  follows:  "The  difficulty 
which  existed  in  England,  previous  to  Mr.  Fox's  libel  act,  was  that  in 
criminal  prosecutions  the  defendant  was  not  permitted  to  give  the 
truth  in  evidence ;  and  yet  the  jury  were  required  to  imply  malice. 
But  in  civil  cases  the  defendant  was  permitted  to  give  the  truth  in 
evidence  as  a  full  justification."  Such  was  declared  to  be  the  law  by 
the  judges  at  the  time  that  bill  was  under  discussion  in  parliament, 
and  there  has  never  been  any  alteration  of  the  law  in  England  on  this 
subject  in  civil  suits.  The  case  of  King  v.  Root,  supra,  was  originally 
tried  at  one  of  the  circuits  in  New  York  before  Hon.  Samuel  R.  Betts. 
The  defendants,  King  and  Verplanck,  were  editors  of  the  New  York 
American,  printed  in  the  city  of  New  York  in  1824.  These  editors 
published  concerning  one  Root,  lieutenant  governor  of  that  state, 


SLANDER  AND   LIBEL.  349 

among  other  things,  that  in  August  of  that  year  he  addressed  the  state 
senate,  then  in  session,  "while  blind  with  passion  and  rum,  when  he 
was  unwashed,  unshaven,  haggard,  with  tobacco  juice  trickling  from 
the  corners  of  his  mouth,  and  in  a  condition  outraging  all  order,  de- 
cency, and  forbearance."  Root  brought  a  civil  action  to  recover  dam- 
ages for  the  alleged  libel,  and  the  defendants  admitted  the  publication, 
and  pleaded  the  truth  as  justification.  The  trial  judge  instructed  the 
jury,  "if  the  defendants  had  only  published  the  truth,  they  had  an  un- 
questionable right  to  do  that,  and  they  must  be  acquitted." 

Blackstone,  in  his  Commentaries,  asserts  that  the  truth  could  always 
be  given  in  civil  cases  in  justification  of  libel,  and  seems  to  consider 
the  defendant's  exemption  in  such  instances  as  extended  to  him  in 
consideration  of  his  merit  in  having-  warned  the  public  against  the  evil 
practices  of  a  delinquent.  He  says  that  it  is  a  damnum  absque  injuria, 
intimating  that  the  acts  of  the  defendant  who  justifies  a  libelous  pub- 
lication does  not  constitute  a  wrong,  in  its  legal  sense,  and  then  pro- 
ceeds to  observe  that  this  is  agreeable  to  the  reasoning  of  the  civil 
law.  3  Bl.  Comm.  125.  This  is'  illogical ;  and  Starkie  bases  this  ex- 
emption on  the  better  reason  that,  in  such  instances,  the  plaintiff  has 
excluded  himself  from  his  right  of  action  at  law  by  his  own  miscon- 
duct, and  not  to  any  merit  appertaining  to  the  defendant.  When  a 
plaintiff  is  really  guilty  of  the  offense  imputed,  he  does  not  offer  him- 
self to  the  court  as  a  blameless  party,  seeking  a  remedy  for  a  malicious 
mischief.  His  original  misbehavior  taints  the  whole  transaction  with 
which  it  is  connected,  and  precludes  him  from  recovering  that  com- 
pensation to  which  all  innocent  persons  would  be  entitled.  Folk. 
Starkie,  Sland.  &  L.  (Amer.  Ed.)  §  692. 

If  it  be  contended  that,  within  the  provision  of  the  constitution,  the 
proof  of  the  truth  as  a  defense  in  a  civil  action  is  no  justification,  ex- 
cept it  be  also  made  to  appear  that  the  publication  was  had  for  justi- 
fiable ends,  we  answer  that,  in  view  of  the  rule  of  law  applicable  in 
such  cases  at  the  time  of  the  adoption  of  the  state  constitution,  we  do 
not  think  such  a  construction  proper.  It  is  not  in  accordance  with 
the  spirit  or  the  letter  of  that  instrument.  It  provides  that  in  civil 
and  criminal  actions  the  truth  may  be  given  in  evidence  to  the  jury, 
and,  where  an  accused  is  on  trial, — that  is,  where  a  person  charged 
with  a  crime  for  the  publication  of  alleged  libelous  matter  is  being 
tried, — he  is  not  to  be  acquitted,  except  the  publication  is  true,  and 
the  same  was  published  for  justifiable  ends.  In  that  event  only  is  the 
accused  party  entitled  to  an  acquittal.  The  word  "accused"  is  used  in 
the  constitution,  and,  an  "accused"  being  one  who  is  charged  with  a 
crime  or  misdemeanor,  it  cannot  well  be  said  to  apply  to  a  defendant 
in  a  civil  action.  If  the  motive  of  the  party  publishing  the  truth  is 
to  be  considered  in  civil  suits,  under  the  constitution,  then  this  section 
quoted,  instead  of  operating  to  the  protection  of  individuals  charged 
in  personal  actions  for  damages  for  the  publication  of  alleged  libelous 


350  LAW  OF  TORTS. 

matter,  as  was  doubtless  intended  by  the  framers  of  the  constitution, 
would  have  the  effect  to  hold  parties  responsible  in  cases  where  at 
the  common  law  they  would  be  entitled  to  a  verdict.  The  constitution 
contains  no  grant  of  powers  to  the  legislature.  It  is  only  a  limitation 
on  the  exercise  of  its  authority ;  and  the  legislature,  in  its  discretion, 
has  the  right  to  pass  any  act  not  violative  of  the  state  or  federal  con- 
stitutions. The  object  of  section  n  of  the  bill  of  rights  was  to  prevent 
the  passage  of  any  law  in  Kansas  restraining  or  abridging  the  liberty 
of  speech  and  of  the  press.  By  it  the  harsh  rule  of  the  common  law, 
as  generally  recognized  in  libel  prosecutions,  was  greatly  modified; 
but  we  cannot  seriously  think  that  it  was  intended  thereby  to  abro- 
gate that  principle  of  the  common  law,  sustained  and  upheld  under 
the  exacting  and  arbitrary  construction  of  libels  in  England,  that  proof 
of  the  truth  is  a  complete  justification  in  all  civil  actions.  Nor  can  we 
believe  that  thereby  it  was  intended  that  the  legislative  power  of  the 
state  was  forever  deprived  of  conferring  the  right  upon  a  defendant 
in  a  civil  action  of  libel  to  plead  the  truth  of  the  words  charged  as  a 
full  and  complete  defense.  To  assert  otherwise  would  be  to  assert 
that  the  constitution  abridged  and  curtailed  the  liberty  of  the  press 
in  civil  actions  more  than  the  common  law, — more  than  the  provisions 
of  the  constitutions  of  other  states.  The  modification  of  the  common 
law  by  the  constitution  we  construe  in  favor  of  the  liberty  of  the  press, 
notx  against  it.  The  constitution  of  Rhode  Island  provides,  "in  all 
trials  for  libel,  both  civil  and  criminal,  the  truth,  unless  published  from 
malicious  motives,  shall  be  sufficient  defense  to  the  person  charged." 
And  it  was  held  in  that  state  that  the  truth  of  the  charge  is  a  good 
defense  in  a  civil  action  for  libel.  Perry  v.  Man,  I  R.  I.  263. 

From  our  review  of  the  authorities,  the  provision  of  our  constitu- 
tion, the  Civil  and  Criminal  Codes,  we  deduce  these  important  prin- 
ciples :  First.  In  all  criminal  prosecutions  the  truth  of  the  libel  is 
no  defense  unless  it  was  for  public  benefit  that  the  matters  charged 
should  be  published;  or,  in  other  words,  that  the  alleged  libelous 
matter  was  true  in  fact,  and  was  published  for  justifiable  ends ;  but 
in  all  such  proceedings  the  jury  have  the  right  to  determine,  at  their 
discretion,  the  law  and  the  fact.  Second.  In  all  civil  actions  of  libel 
brought  by  the  party  claiming  to  have  been  defamed,  where  the  de- 
fendant alleges  and  establishes  the  truth  of  the  matter  charged  as  de- 
famatory, such  defendant  is  justified  in  law,  and  exempt  from  all  civil 
responsibility.  In  such  actions  the  jury  must  receive  and  accept  the 
direction  of  the  court  as  to  the  law.  Under  this  view,  the  court  below 
misdirected  the  jury  in  a  very  material  point,  and  properly,  on  atten- 
tion being  again  called  to  the  matter  by  a  motion  for  a  new  trial, 
granted  such  motion,  and  set  the  case  again  for  hearing.  The  instruc- 
tions given  might  have  been  applicable  in  a  criminal  proceeding, 
where  the  motive  of  the  publication  is  important,  and  where  the  jury 
have  a  right  to  determine  the  law  as  well  as  the  fact ;  but  were  errone- 


SLANDER  AND   LIBEL.  351 

ous  in  a  civil  action,  where  the  facts  charged  were  proven  in  justifica- 
tion. The  instructions  assumed  that  the  truth  is  not  a  full  and  com- 
plete defense  unless  it  was  shown  to  have  been  published  for  good 
purposes  and  justifiable  ends.  This  is  not  correct.  If  the  charges 
made  by  the  defendant  are  true,  however  malicious,  no  action  lies. 
Root  v.  King,  7  Cow.  613,  632;  Townsh.  Sland.  &  L.  §  211 ;  Foss  v. 
Hildreth,  10  Allen,  76;  Baum  v.  Clause,  5  Hill,  196;  I  Starkie,  Sland. 
&  L.  229;  Rayne  v.  Taylor,  14  La.  Ann.  406. 

The  order  of  the  district  court  setting  aside  the  verdict  of  the  jury 
in  the  case,  and  granting  a  new  trial,  is  affirmed. 

All  concurred. 

(In  a  number  of  the  states  it  is  now  the  law  that  in  criminal  cases  of  libel 
the  truth  is  a  sufficient  defense  if  proved  to  have  been  published  "with  good 
motives  and  for  justifiable  ends."  N.  Y.  Pen.  Code,  §  244;  Drake  v.  State,  53 
N.  J.  Law,  23,  20  Atl.  747;  State  v.  Hoskins,  109  Iowa,  656,  80  N.  W.  1063,  47 
L.  R.  A.  223,  77  Am.  St  Rep.  560;  State  v.  Wait,  44  Kan.  310,  24  Pac.  354; 
State  v.  Shippman,  83  Minn.  441,  86  N.  W.  431;  cf.  Perry  v.  Porter,  124  Mass. 
338.  But  in  civil  actions  for  libel  or  slander  the  truth  is  at  common  law  a 
complete  defense,  no  matter  what  may  have  been  the  motive  for  its  publica- 
tion. In  some  states,  however,  the  above  rule  as  to  criminal  libels  is  by  stat- 
utory or  constitutional  provisions  made  applicable  to  civil  libels  also.  Jones 
v.  Townsend's  Adm'x,  21  Fla.  431,  58  Am.  Rep.  476;  Delaware  Ins.  Co.  v. 
Croasdale,  6  Houst.  [Del.]  181;  Sweeney  v.  Baker,  13  W.  Va.  158,  31  Am.  Rep. 
757;  Pokrok  Pub.  Co.  v.  Ziskovsky,  42  Neb.  64,  60  N.  W.  358.) 


(113  Mich.  199,  71  N.  W.  585.) 

YOUNGS  v.  ADAMS  (in  part). 

(Supreme  Court  of  Michigan.    May  28,  1897.) 

JUSTIFICATION — IDENTICAL  CHARGE  MADE  MUST  BE  PROVED. 

A  charge  of  being  a  thief  cannot  be  justified  by  showing  that  the  person 
so  accused  was  guilty  of  cheating,  fraud,  or  false  pretenses. 

Error  to  Circuit  Court,  Marquette  County;  John  W.  Stone,  Judge. 
Action  by  Clark  W.  Youngs  against  Sidney  Adams.    Judgment  for 
plaintiff.    Defendant  brings  error.    Affirmed. 

HOOKER,  J.  The  defendant  appeals  from  a  verdict  and  judgment 
against  him  in  a  slander  case.  The  slanderous  words  charged  were : 
"You  are  a  liar  and  thief,  and  I  have  the  papers  to  prove  it."  The 
court  instructed  the  jury  that  these  words,  taken  in  their  ordinary  and 
natural  sense,  charged  the  plaintiff  with  the  offense  of  larceny,  and 
the  statement,  if  made  without  qualification,  was  actionable  per  se. 
With  the  plea  of  the  general  issue,  the  defendant  filed  a  notice,  in  the 
nature  of  justification,  in  which  he  alleged  that  he  would  prove  that 
the  plaintiff,  while  in  his  employ,  defrauded  him  in  various  ways,  and 
fraudulently  embezzled  and  converted  to  his  own  use  the  moneys  of 


352  LAW  OF  TORTS. 

the  defendant,  and  obtained  the  property  of  others  named  by  false 
pretenses. 

The  court  instructed  the  jury  that  proof  of  cheating,  trickery,  and 
fraud,  unless  it  amounted  to  actual  theft,  would  not  amount  to  a  jus- 
tification, and  that  no  taking  or  conversion  would  amount  to  larceny 
or  embezzlement — which  he  said  was'  statutory  larceny — unless  it  in- 
cluded a  felonious  intent  to  convert  the  property  taken  or  misappro- 
priated to  his  own  use.  It  was  thus  left  to  the  jury  to  find  a  justifica- 
tion by  embezzlement,  if  the  necessary  elements  to  establish  it  were 
found.  We  think  the  court  did  not  err  in  saying  that  a  charge  of  being 
a  thief  could  not  be  justified  by  showing  the  plaintiff  guilty  of  cheat- 
ing, fraud,  or  false  pretenses,  and  there  was  no  error  in  refusing  the 
numerous  requests  upon  these  subjects.  The  other  justices  concurred. 

(Saying  that  a  person  has  stolen  a  certain  article  is  not  justified  by  showing 
that  he  stole  a  different  article  [Hilsden  v.  Mercer,  Cro.  Jac.  677;  Ridley  v. 
Perry,  16  Me.  21];  a  charge  of  stealing  a  dollar  from  one  person,  by  proof  of 
stealing  it  from  another  person  [Gardner  v.  Self,  15  Mo.  480];  a  charge  of  one 
kind  of  misconduct,  by  proof  of  a  different  kind  [Shepard  v.  Merrill,  13  Johns. 
4T.j] ;  a  charge  of  one  crime,  by  proving  another  or  a  different  crime  [Skinner 
ads.  Powers,  1  Wend.  451 ;  Coffin  v.  Brown.  94  Md.  190,  50  Atl.  567,  55  L.  R.  A. 
732,  89  Am.  St  Rep.  422 ;  Haddock  v.  Naughton,  74  Hun,  390,  26  N.  Y.  Supp. 
455].  To  the  same  effect  are  Pallet  v.  Sargent,  36  N.  H.  496 ;  Burford  v.  Wible, 
32  Pa.  95 ;  Downs  v.  Hawley,  112  Mass.  237 ;  State  v.  Verry,  36  Kan.  416,  13 
Pac.  838 ;  Walters  T.  Smoot,  33  N.  C.  315.) 


(19  Wend.  487.) 

STILWELL  v.  BARTER  (in  part). 
(Supreme  Court  of  New  York.    May,  1838.) 

JUSTIFICATION  MUST  BE  AS  BROAD  AS  THE  CHARGE. 

A  charge  of  smuggling  goods  into  the  country  is  libelous.  It  Is  no  an- 
swer to  a  libel  charging  a  party  with  having  been  actively  and  profitably 
engaged  in  smuggling  during  the  period  of  the  late  war,  that  he  had  vio- 
lated the  revenue  laws  in  a  single  instance  previous  to  the  war  and  in  a 
time  of  peace;  the  justification,  to  be  efficient,  must  be  as  broad  as  the 
libel. 

Demurrer  to  plea.  Action  for  a  libel  on  the  plaintiff,  who,  at  and 
before  the  time  of  publication,  was  deputy  collector  of  the  port  of 
Ogdensburgh,  and  inspector  of  the  customs  for  the  district  of  Os- 
wegatchie. 

BRONSON,  J.  On  the  most  favorable  construction  that  can  be 
given  to  the  libel,  it  charges  the  plaintiff  with  having  been  engaged  in 
smuggling  goods  into  the  country  from  Canada  during  the  period  of 
the  late  war ;  that  he  was  so  engaged,  not  in  a  single  instance  only, 
but  as  a  business  or  pursuit.  The  language  is,  "He  has  been  actively 


SLANDER  AND   LIBEL.  353 

and  profitably  engaged  in  a  particular  kind  of  dry  goods  business," 
and  thus  acquired  an  "intimate  knowledge  of  the  old  smuggling  haunts 
and  by-paths."  It  is  also  charged,  in  effect,  that  the  plaintiff  received 
his  appointment  to  office  on  account  of  the  intimate  knowledge  which 
he  had  acquired  in  that  business  of  the  old  smuggling  haunts  and  by- 
paths. 

The  plea  contains  no  answer  whatever  to  the  charge  that  the  plain- 
tiff was  engaged  in  smuggling  during  the  period  of  the  late  war.  It 
only  alleges  a  single  violation  of  the  laws  of  the  United  States  in  Feb- 
ruary, 1812 — several  months  before  war  was  declared.  There  are 
several  shades  of  difference  between  a  mere  transgression  of  the  reve- 
nue laws  of  the  country  in  time  of  peace,  and  an  illicit  intercourse 
with  the  public  enemy  in  time  of  war;  and  the  defendant  must  justify 
the  charge  which  he  has  made.  It  is  not  enough  to  show  that  the 
plaintiff  has  been  guilty  of  some  improper  conduct,  other  than  that 
which  is  imputed  to  him.  Andrews  v.  Vanduzer,  II  Johns.  R.  38. 
Skinner  ads.  Powers,  I  Wendell,  451. 

The  plea  contains  no  answer  to  the  charge  that  the  plaintiff  received 
his  appointment  to  office  on  account  of  his  intimate  knowledge,  ac- 
quired by  smuggling,  of  the  old  smuggling  haunts  and  by-paths.  It 
professes  to  answer  the  whole  libel,  and  is  clearly  bad  for  only  an- 
swering a  part. 

Judgment  for  the  plaintiff. 

(In  Fero  v.  Ruscoe,  4  N.  Y.  162,  165,  the  following  apt  statement  Is  made: 
"The  justification  must  be  as  broad  as  the  charge.  There  is  no  such  thing  as  a 
halfway  justification.  When  several  distinct  things  are  charged,  the  defendant 
may  justify  as  to  one,  though  he  may  not  be  able  to  do  so  as  to  all;  but  as  to 
any  one  charge,  the  justification  will  either  be  everything  or  nothing.  If  the 
charge  be  of  stealing  a  horse,  it  is  not  half  of  a  defense,  nor  any  part  of  one, 
to  show  that  the  plaintiff  took  the  horse  by  a  mere  trespass;  or  if  the  charge 
be  perjury,  proof  that  the  plaintiff  swore  falsely  through  an  innocent  mistake 
amounts  to  nothing."  To  the  same  effect  are  O'Brien  v.  Bryant,  16  M.  &  W. 
168;  Wakley  v.  Healey,  4  Exch.  511;  Christiansen  v.  O'Neil,  39  Misc.  Rep.  11. 
78  N.  Y.  Supp.  757,  affirmed  82  App.  Div.  636,  81  N.  Y.  Supp.  1120;  Stock  v. 
Keele,  86  App.  Div.  136,  83  N.  Y.  Supp.  133;  Rutherford  v.  Paddock,  ISO  Mass. 
289,  62  N.  E.  381,  91  Am.  St.  Rep.  282;  Chapman  v.  Ordway,  5  Allen,  5ii3;  18 
Arner.  &  Eng.  Encyc.  of  Law  [2d  Ed.]  1070.  A  justification  is  not  made  out  by 
proving  that  there  are  rumors  that  the  charge  is  true.  Stuart  v.  News  Pub. 
Co.,  67  N.  J.  Law,  317,  51  Atl.  709;  Brewer  v.  Chase,  121  Mich.  526,  80  N.  W. 
575,  46  L.  R.  A.  397,  80  Am.  St.  Rep.  527.  It  is  sufficient,  however,  to  prove 
that  the  charge  made  is  substantially  true.  Conner  v.  Standard  Pub.  Co.,  183 
Mass.  474,  67  N.  E.  596;  McLeod  v.  Crosby,  128  Mich.  641,  87  N.  W.  883.  When 
several  separate  and  distinct  things  are  charged,  the  defendant  may  justify  as 
to  one.  though  he  fail  as  to  the  others.  Lanpher  v.  Clark,  149  N.  Y.  472,  44 
N.  E.  182;  Clarkson  v.  Lawson,  6  Bing.  587. 

By  statute  in  a  number  of  the  states,  matter  which,  if  pleaded  as  a  justifica- 
tion, will  not  suffice  for  this  purpose,  may  be  proved  in  mitigation  of  damages. 
In  some  of  these  states,  however,  this  is  only  allowable  in  case  these  facts  are 
specially  pleaded  by  way  of  mitigation,  in  addition  to  the  plea  of  justification. 
Klinck  v.  Colby,  46  N.  Y.  427,  7  Am.  Rep.  360;  Hathorn  v.  Congress  Spring  Co.. 

CHASE  (2o  ED.) — 23 


354  LAW  OF  TORTS. 

44  Hun,  608;  Times  Pub.  Co.  v.  Carlisle,  94  Fed.  702,  36  C.  C.  A.  475;  Marker 
v.  Dunn,  68  Iowa,  720,  28  N.  W.  38;  Wilson  v.  Noonan,  35  Wis.  321.  The  com- 
mon-law rule  is  otherwise,  not  allowing  matter  which  tends  to  prove  the  truth 
of  the  charge  complained  of  to  be  received  in  evidence  by  way  of  mitigation. 
Bisbey  v.  Shaw,  12  N.  Y.  67. 

If  the  defamatory,  charge  Is  prefaced  %with  such  words  as  these,  "It  is  re- 
yorted  that,"  etc.,  or  "There  is  a  rumor,"  etc.,  or  "A  has  said  that,"  etc.,  It 
will  not  be  a  justification  to  prove  that  there  was  such  a  report  or  rumor,  or 
that  A  did  make  the  statement,  but  the  truth  of  the  charge  itself  must  be 
established.  Brewer  v.  Chase,  121  Mich.  520,  80  N.  W.  575,  46  L.  R.  A.  397,  80 
Am.  St.  Rep.  527;  Watkin  v.  Hall,  L.  R.  3  Q.  B.  396;  Kenney  v.  McLaughlin, 
5  Gray,  3,  66  Am.  Dec.  345. 

It  is  now  the  general  rule  in  this  country  [though  in  a  few  states  it  is  other- 
wise] that  the  defense  of  justification,  when  it  alleges  the  commission  of  a 
crime,  may  be  established  by  a  preponderance  of  evidence,  and  that  proof  be- 
yond a  reasonable  doubt  is  not  required.  Ellis  v.  Buzzell,  60  Me.  209,  11  Am. 
Rep.  204:  Lewis  v.  Shull,  67  Hun,  543,  22  N.  Y.  Supp.  484;  McBee  v.  Fulton, 
47  Md.  403.  28  Am.  Rep.  405:  Bell  v.  McGuinness,  40  Ohio  St.  204,  48  Am.  Rep. 
673;  Peoples  v.  Evening  News,  51  Mich.  11,  16  N.  W.  185,  691.) 


VI.  DEFENSE  OF  "PRIVILEGED  COMMUNICATION." 
1.  Qualified  privilege. 

(73  Md.  87,  20  Atl.  774,  10  L.  R.  A.  67.  25  Am.  St  Rep.  575.) 

FRESH  v.  CUTTER  (in  part). 
(Court  of  Appeals  of  Maryland.     November  13,  1890.) 

1.  SLANDER— PRIVILEGED  COMMUNICATIONS— CHARACTER  OF  SERVANT. 

Where  the  former  master  of  one 'who  is  about  to  enter  the  service  of 
another,  voluntarily,  in  good  faith,  without  malice,  in  the  honest  belief 
that  he  is  discharging  a  duty  to  his  neighbor,  and  with  a  full  conviction 
of  the  truth  of  his  words,  tells  the  new  master  that  the  servant  has  stolen 
from  him,  the  communication  is  privileged, 

2.  SAME. 

Damages  cannot  be  recovered  by  the  servant  In  such  a  case,  in  an  action 
against  the  former  master  for  slander,  unless  the  plaintiff  shows  that 
actual  malice  prompted  the  utterance. 

3.  SAME. 

The  speaking  of  such  words  to  a  person  other  than  the  new  master 
would  not  be  privileged,  though  made  with  a  belief  in  their  truth. 

Appeal  from  Circuit  Court,  Washington  County. 

The  pleas  herein  successfully  demurred  to  were  as  follows:  "And 
the  defendant,  for  a  second  plea,  says  that  he  honestly  and  bona  fide 
believed  the  words  spoken  by  him  were  true,  and  that  he  spoke  them 
to  a  neighbor  who  had  employed  the  plaintiff,  or  was  about  to  employ 
him,  and  that  he  spoke  the  words  to  said  neighbor  in  the  bona  fide 
performance  of  a  duty,  and  without  malice;  and  for  a  third  plea  the 


SLANDER   AND    LIBEL. 


355 


defendant  says  that,  when  he  spoke  the  alleged  slanderous  words  set 
forth  in  the  declaration,  he  honestly  and  bona  fide  believed  them  to 
be  true,  and  that  he  spoke  them  only  to  a  neighbor,  Mr.  Charles  Allen, 
who  had  employed,  or  was  about  to  employ,  the  plaintiff,  and  that  he 
spoke  the  said  words  to  said  neighbor  in  the  bona  fide  performance 
of  a  duty,  and  without  malice." 

Argued  before  ALVEY,  C.  J.,  and  BRYAN,  MILLER,  IRVING, 
FOWLER,  BRISCOE,  and  McSHERRY,  JJ. 

McSHERRY,  J.  Jacob  Cutter  sued  George  H.  Fresh  for  defama- 
tory words  alleged  to  have  been  spoken  by  the  latter  of  and  concern- 
ing the  former.  Cutter  had  at  one  time  been  an  employee  of  Fresh, 
but  after  he  ceased  to  occupy  that  relation,  and  had  entered,  or  was 
about  to  enter,  the  service  of  one  Allen,  Fresh,  of  his  own  accord,  and 
without  solicitation  or  inquiry  on  the  part  of  Allen,  said  to  Allen, 
"He  [meaning  the  plaintiff]  stole  as  good  as  two  hundred  dollars  from 
me,  and  I  want  the  money."  These  are  the  alleged  defamatory  words. 
It  was  shown  by  the  evidence  that  several  persons  had  communicated 
information  to  Fresh  which  induced  him  to  believe  that  Cutter  had 
while  in  his  employment  stolen  from  him.  It  was  also  shown  that 
when  he  learned  that  his  neighbor  Allen  had  employed  Cutter,  he, 
Fresh,  honestly  believed  that  it  was  his  duty  to  inform  Allen  of  what 
he  knew  concerning  Cutter ;  and  that  he  told  Allen  these  things  vol- 
untarily, and  without  being  requested,  honestly  believing  it  was  a 
duty  he  owed  to  his  neighbor,  and  for  the  sole  purpose  of  putting  Allen 
upon  his  guard.  He  testified  that  he  had  not  been  actuated  by  malice 
or  ill  will,  and  that  he  had  never  had  any  bad  feeling  against  Cutter. 
There  was  some  evidence  that  the  words  complained  of  had  been 
spoken  by  Fresh  to  a  person  named  Click,  though  the  latter  was  un- 
able to  state  whether  the  language  used  by  the  defendant  was  "took" 
or  "stole." 

This  brief  outline  of  the  facts  is  sufficient  to  indicate  that  the  prin- 
cipal question  which  we  are  called  upon  to  decide  on  this  appeal  is 
whether  the  statement  made  by  Fresh  to  Allen,  under  the  circum- 
stances named,  was  a  privileged  communication  or  not.  If  privileged, 
all  the  authorities  agree  in  holding  that  it  is  not  absolutely  or  unquali- 
fiedly, but  only  conditionally,  so.  If  falsely  and  maliciously  made,  it 
would  be  actionable.  Malice  is  the  foundation  of  the  action,  and  in 
ordinary  cases  is  implied  from  the  slander;  but  there  may  be  justifi- 
cation from  the  occasion,  and  when  this  appears,  an  exception  to  the 
general  rule  arises,  and  the  words  must  be  proved  to  be  malicious  as 
well  as  false.  Beeler  v.  Jackson,  64  Md.  593,  2  Atl.  916.  This  justi- 
fication from  the  occasion  arises,  in  the  class  of  cases  now  being  con- 
sidered, when  a  communication  is  "made  bona  fide  upon  any  subject- 
matter  in  which  the  party  communicating  has  an  interest,  or  in  refer- 
ence to  which  he  has  a  duty,  if  made  to  a  party  having  a  corresponding 


356 

interest  or  duty,"  although  the  communication  "contained  criminating 
matter  which,  without  this  privilege,  would  be  slanderous  and  ac- 
tionable; and  this  though  the  duty  be  not  a  legal  one,  but  only  a 
moral  or  social  duty  of  imperfect  obligation."  Harrison  v.  Bush,  5 
El.  &  Bl.  344.  It  seems  to  be  generally  conceded,  as  falling  within 
this  principle,  that  where  a  master' gives  a  character  of  a  servant, 
unless  the  contrary  be  expressly  proved,  it  will  be  presumed,  that 
the  character  was  given  without  malice,  and  the  plaintiff,  to  support 
the  action,  must  prove  that  the  character  was  both  falsely  and  mali- 
ciously given ;  and,  although  the  statement  as  to  the  character  should 
be  untrue  in  fact,  the  master  will  be  held  justified  by  the  occasion,  un- 
less it  can  be  shown  that  in  making  the  statement  he  was  actuated 
by  a  malicious  feeling,  and  knowingly  stated  what  was  untrue  and 
injurious.  Starkie,  Sland.  &  L.  253.  If,  under  the  conditions  just 
named,  the  statement  be  made  in  response  to  an  inquiry,  it  would- 
undoubtedly  be  privileged.  Weatherston  v.  Hawkins,  I  Term  R.  no; 
Child  v.  Affleck,  9  Barn.  &  C.  403.  But  in  the  case  at  bar  it  is  con- 
ceded that  the  information  was  given  by  the  appellant  to  Allen  volun- 
tarily, and  not  in  response  to  any  inquiry  whatever,  and  this  is  sup- 
posed to  take  the  case  out  of  the  privilege.  It  is  not  perceived  why 
this  circumstance  should  make  any  difference  if  the  party  has  acted 
honestly,  fairly,  and  without  malice,  though,  when  the  information  has 
been  voluntarily  given,  this  fact,  it  has  been  said,  may  in  some  cases 
have  a  tendency  to  disclose  the  motive  of  the  publisher  in  making  the 
publication.  Townsh.  Sland.  &  L.  §  241.  Without  reviewing  the  de- 
cided cases,  it  may  be  said  that  the  weight  of  authority  is  to  the  effect 
that  the  mere  fact  of  the  communication  being  voluntarily  made  does 
not  necessarily  exclude  it  as  a  non-privileged  communication,  for  a 
publication  warranted  by  an  occasion  apparently  beneficial  and  honest 
is  not  actionable,  in  the  absence  of  express  malice.  Starkie,  Sland.  & 
~L,.  253.  Or,  as  stated  in  Odgers,  Sland.  &  L.  202 :  "If  it  were  found 
that  I  wrote  systematically  to  every  one  to  whom  the  plaintiff  applied 
for  work,  the  jury  would  probably  give  damages  against  me.  On  the 
other  hand,  if  B.  was  an  intimate  friend  or  a  relation  of  mine,  and 
there  was  no  other  evidence  of  malice  except  that  I  volunteered  the 
information,  the  occasion  would  still  be  privileged."  Rogers  v.  Clif- 
ton, 3  Bos.  &  P.  587 ;  Pattison  v.  Jones,  8  Barn.  &  C.  585.  It  is  a 
question  for  the  court  whether  the  statement,  if  made  in  good  faith, 
and  without  malice,  is  thus  privileged.  But  the  plaintiff  has  the  right, 
notwithstanding  the  privileged  character  of  the  communication,  to  go 
:o  the  jury  if  there  be  evidence  tending  to  show  actual  malice,  as  when 
the  words  unreasonably  impute  crime,  or  the  occasion  of  their  utter- 
ance is  such  as  to  indicate,  by  its  necessary  publicity,  or  otherwise,  a 
purpose  wrongfully  to  defame  the  plaintiff.  Dale  v.  Harris,  109  Mass. 
196;  Brow  v.  Hathaway,  13  Allen,  239;  Somerville  v.  Hawkins,  to 
C.  B.  583 ;  Gassett  v.  Gilbert,  6  Gray,  94.  Or  malice  may  be  estab- 


SLANDER  AND   LIBEL.  357 

lished  by  showing  that  the  publication  contained  matter  not  relevant 
to  the  occasion.  Townsh.  Sland.  &  L.  §  245.  Expressions  in  excess 
of  what  the  occasion  warrants  do  not  per  se  take  away  the  privilege, 
but  such  excess  may  be  evidence  of  malice.  Ruckley  v.  Kiernan,*  7 
Ir.  C.  L.,  75 ;  Hotchkiss  v.  Porter,  30  Conn.  414.  It  follows  from 
these  principles  that  if  the  communication  made  to  Allen  was  made  in 
good  faith,  without  malice,  in  the  honest  belief  of  its  truth,  and  under 
the  conviction  that  it  was  a  duty  which  Fresh  owed  to  Allen  to  make 
it,  the  words  complained  of  would  not  be  actionable  because  privi- 
leged, though  spoken  voluntarily.  It  is  equally  clear  that  if  the  words 
spoken  were  known  to  be  false  and  were  maliciously  spoken,  or  were 
voluntarily  spoken  to  one  to  whom  Fresh  owed  no  duty,  in  the  sense 
heretofore  mentioned,  the  words  would  be  actionable,  because  not 
within  the  privilege. 

In  view  of  these  conclusions,  there  was  error  in  granting  the  ap- 
pellee's first  and  second  instructions.  Those  instructions  are  as  fol- 
lows, viz. :  "The  plaintiff  prays  the  court  to  instruct  the  jury  that  if 
they  shall  believe  from  the  evidence  that  the  words  charged  in  the 
declaration  were  spoken  of  and  concerning  the  plaintiff  by  the  de- 
fendant, in  the  presence  and  hearing  of  other  persons  than  the  plain- 
tiff, then  the  plaintiff  is  entitled  to  recover  in  this  action."  "That  if 
the  jury  shall  find  for  the  plaintiff,  they  may  award  such  damages  as 
they  in  their  judgment  shall  think  justified  by  all  the  circumstances  of 
the  case,  not  only  for  the  purpose  of  giving  compensation  for  the  in- 
jury done  to  the  plaintiff,  but  also  for  the  purpose  of  punishing  the 
conduct  of  the  defendant."  The  first  instruction  was  wrong  in  omit- 
ting all  reference  to  the  defense  of  privilege.  It  directed  the  jury  to 
find  for  the  plaintiff  if  they  believed  the  defendant  spoke  the  words 
in  the  presence  and  hearing  of  other  persons  than  the  plaintiff.  Un- 
der this  instruction,  the  jury  were  required  to  return  a  verdict  against 
the  defendant,  even  though  they  were  satisfied  that  the  words  were 
spoken  to  Allen  alone,  in  good  faith,  without  malice,  in  the  full  belief 
of  their  truth,  and  under  the  honest  conviction  that  Fresh  was  only 
discharging  a  social  duty  to  his  neighbor  in  making  the  communica- 
tion. This  entirely  ignored  the  question  of  privilege,  which  was  the 
only  defense  relied  on  by  the  appellant.  The  second  instruction  was 
also  erroneous.  It  allowed  punitive  damages  to  be  recovered  even 
though  the  jury  were  not  required  to  find  the  existence  of  actual  mal- 
ice on  the  part  of  the  appellant.  In  cases  of  this  character,  such  is  not 
the  law.  If  the  occasion  brings  the  words  within  a  qualified  privilege, 
no  damages  can  be  recovered  at  all,  unless  the  plaintiff  shows  that 
actual  malice  prompted  the  publication  or  utterance.  The  jury  should 
have  been  so  instructed ;  but  they  were  permitted,  not  merely  to 
assess  damages,  but  punitive  damages,  without  any  regard  whatever 
to  the  question  of  malice.  It  is  true  these  instructions  were  taken  lit- 
erally from  the  case  of  Padgett  v.  Sweeting,  65  Md.  404,  4  Atl.  887, 


358  LAW  OF  TORTS. 

where  they  were  held  by  this  court  to  be  correct.  But  that  case  was 
widely  different  from  the  one  at  bar.  In  the  former  there  was  no 
question  of  privilege.  The  words,  as  here,  were  actionable  per  se, 
but  were  not,  as  in  this  case  it  is  alleged,  spoken  on  any  occasion 
which  justified  their  utterance.  Under  the  conditions  in  Padgett's 
Case,  the  instructions  were  proper.  But  the  same  instructions  could 
not  be  given  in  a  case  like  the  one  before  us  now,  without  ignoring 
all  the  circumstances  admitted  in  evidence  respecting  the  occasion  of 
the  publication,  the  motive  which  inspired  it,  the  belief  of  the  de- 
fendant in  its  truth,  and  the  honesty  and  good  faith  of  its  utterance. 

For  the  error  indicated  in  granting  the  appellee's  first  and  second 
prayers,  the  judgment  must  be  reversed,  and  a  new  trial  must  be 
awarded. 

(See  Fowles  v.  Bowen,  30  N.  Y.  20.  The  general  nature  of  "privileged  com- 
munications" is  well  explained  in  White  v.  Nicholls,  3  How.  266,  11  L.  Ed.  591; 
King  v.  Patterson,  49  N.  J.  Law,  417,  9  Atl.  705,  60  Am.  Rep.  622;  Van  Wyck 
v.  Aspinwall,  17  N.  Y.  190.) 


(Ill  N.  Y.  143,  19  N.  B.  75,  2  L.  R.  A.  129,  7  Am.  St.  Rep.  726.) 

BYAM  v.  COLLINS  et  al. 
(Court  of  Appeals  of  New  York.    November  27,  1888.) 

1.  LIBEL  AND  SLANDER— PRIVILEGED  COMMUNICATIONS — CHARACTER  OF  SUITOR. 

A  libelous  letter  to  an  unmarried  woman  concerning  her  suitor,  not 
written  at  her  request,  but  appearing  to  have  been  written  at  the  instance 
of  mutual  friends,  for  the  purpose  of  preventing  her  marriage  to  him,  is 
not  privileged  by  reason  of  previous  friendship,  nor  by  reason  of  a  request 
made  four  years  before,  and  before  the  acquaintance  of  the  suitor  was 
made,  for  information  of  anything  known  to  the  writer  concerning  any 
young  man  the  person  addressed  "went  with,"  or  any  young  man  in  the 
place. 

2.  SAME — CONFIDENTIAL  COMMUNICATIONS. 

Defamatory  words  are  not  privileged  because  uttered  in  strictest  con- 
fidence by  one  friend  to  another,  nor  because  they  are  uttered  after  the 
most  urgent  solicitation,  nor  because  the  interview  in  which  they  are 
uttered  is  obtained  at  the  instance  of  the  person  slandered. 

3.  SAME — IMPLIED  MALICE. 

Malice  is  implied  as  well  from  oral  as  from  written  defamation,  where 
the  communication  is  not  privileged. 

Appeal  from  Supreme  Court,  General  Term,  Fifth  Department. 

Action  by  William  J.  Byam  against  Jennie  E.  Collins,  and  Alfred 
H.  Collins,  her  husband,  for  libel  and  slander.  Judgment  for  defend- 
ants was  affirmed  at  general  term,  and  plaintiff  appeals. 

EARL,  J.  The  general  rule  is  that  in  the  case  of  a  libelous  pub- 
lication the  law  implies  malice,  and  infers  some  damage.  What  are 
called  "privileged  communications"  are  exceptions  to  this  rule.  Such 


SLANDER  AND  LIBEL.  359 

communications  are  divided  into  several  classes,  with  one  only  of 
which  we  are  concerned  in  this  case,  and  that  is  generally  formulated 
thus :  "A  communication  made  bona  fide  upon  any  subject-matter 
in  which  the  party  communicating  has  an  interest,  or  in  reference  to 
which  he  has  a  duty,  is  privileged,  if  made  to  a  pefson  having  a  cor- 
responding interest  or  duty,  although  it  contain  criminating  matter 
which,  without  this  privilege,  would  be  slanderous  and  actionable; 
and  this  though  the  duty  be  not  a  legal  one,  but  only  a  moral  or  social 
duty  of  imperfect  obligation."  The  rule  was  thus  stated  in  Harrison 
v.  Bush,  5  El.  &  Bl.  344,  and  has  been  generally  approved  by  judges 
and  text-writers  since.  In  Toogood  v.  Spyring,  I  Cromp.  M.  &  R. 
181,  an  earlier  case,  it  was  said  that  the  law  considered  a  libelous 
"publication  as  malicious  unless  it  is  fairly  made  by  a  person  in  the  dis- 
charge of  some  public  or  private  duty,  whether  legal  or  moral,  or  in 
the  conduct  of  his  own  affairs  in  matters  where  his  interest  is  con- 
cerned ;"  and  that  statement  of  the  rule  was  approved  by  Folger,  J., 
in  Klinck  v.  Colby,  46  N.  Y.  427,  7  Am.  Rep.  360,  and  in  Hamilton 
v.  Eno,  81  N.  Y.  116.  In  White  v.  Nicholls,  3  How.  266,  291,  n  L. 
Ed.  591,  it  was  said  that  the  description  of  cases  recognized  as  privi- 
leged communications  must  be  understood  as  exceptions  to  the  gen- 
eral rule,  and  "as  being  founded  upon  some  apparently  recognized 
obligation  or  motive,  legal,  moral,  or  social,  which  may  fairly  be  pre- 
sumed to  have  led  to  the  publication,  and  therefore  prima  facie  relieves 
it  from  that  just  implication  from  which  the  general  law  is  deduced." 
Whether  within  the  rule  as  defined  in  these  cases  a  libelous  com- 
munication is  privileged,  is  a  question  of  law;  and  when  upon  any 
trial  it  has  been  held  as  matter  of  law  to  be  privileged,  then  the  bur- 
den rests  upon  the  plaintiff  to  establish  as  matter  of  fact  that  it  was 
maliciously  made,  and  this  matter  of  fact  is  for  the  determination  of 
the  jury.  It  has  been  found  difficult  to  frame  this  rule  in  any  language 
that  will  furnish  a  plain  guide  in  all  cases.  It  is  easy  enough  to  apply 
the  rule  in  cases  where  both  parties — the  one  making  and  the  one  re- 
ceiving the  communication — are  interested  in  it,  or  where  the  parties 
are  related,  or  where  it  is  made  upon  request  to  a  party  who  has  an 
interest  in  receiving  it,  or  where  the  party  making  it  has  an  interest  to 
subserve,  or  where  the  party  making  it  is  under  a  legal  duty  to  make 
it.  But  when  the  privilege  rests  simply  upon  the  moral  duty  to  make 
the  communication,  there  has  been  much  uncertainty  and  difficulty  in 
applying  the  rule.  The  difficulty  is  to  determine  what  is  meant  by 
the  term  "moral  duty,"  and  whether  in  any  given  case  there  is  such 
a  duty.  In  Whiteley  v.  Adams,  15  C.  B.  (N.  S.)  393,  Erie,  C.  J.,  said : 
"Judges  who  have  had  from  time  to  time  to  deal  with  questions  as  to 
whether  the  occasion  justified  the  speaking  or  the  writing  of  defama- 
tory matter  have  all  felt  great  difficulty  in  defining  what  kind  of  social 
or  moral  duty,  or  what  amount  of  interest,  will  afford  a  justification ;" 
and  in  the  same  case  Byles,  J.,  said  the  application  of  the  rule  "to  par- 


360  LAW  OF  TORTS. 

ticular  cases  has  always  been  attended  with  the  greatest  difficulty,  the 
combinations  of  circumstances  are  so  infinitely  various." 

The  rule  as  to  privileged  communications  should  not  be  so  extended 
as  to  open  wide  the  flood-gates  of  injurious  gossip  and  defamation, 
by  which  private  character  may  be  overwhelmed,  and'  irreparable  mis- 
chief done ;  and  yet  it  should  be  so  administered  as  to  give  reasonable 
protection  to  those  who  make  and  receive  communications  in  which 
they  are  interested,  or  in  reference  to  which  they  have  a  real,  not 
.imaginary,  duty.  Every  one  o\\es  a  moral  duty  not,  as  a  volunteer 
in  a  matter  in  which  he  has  no  legal  duty  or  personal  interest,  to  de- 
fame another  unless  he  can  find  a  justification  in  some  pressing  emer- 
gency. In  Coxhead  v.  Richards,  2  Man.  G.  &  S.  *S^9,  *6oi,  Coltman, 
J.,  said:  "The  duty  of  not  slandering  your  neighbor  on  insufficient 
grounds  is  so  clear  that  a  violation  of  that  duty  ought  not  to  be  sanc- 
tioned in  the  case  of  voluntary  communications,  except  under  circum- 
stances of  great  urgency  and  gravity.  It  may  be  said  that  it  is  very 
hard  on  a  defendant  to  be  subject  to  heavy  damages  when  he  has  act- 
ed honestly,  and  when  nothing  more  can  be  imputed  to  him  than  an 
error  in  judgment.  It  may  be  hard,  but  it  is  very  hard,  on  the  other 
hand,  to  be  falsely  accused.  It  is  to  be  borne  in  mind  that  people  are 
but  too  apt  rashly  to  think  ill  of  others.  The  propensity  to  tale-bear- 
ing and  slander  is  so  strong  among  mankind,  and  when  suspicions  are 
infused  men  are  so  apt  to  entertain  them  without  due  examination, 
in  cases  where  their  interests  are  concerned,  that  it  is  necessary  to  hold 
the  rule  strictly  as  to  any  officious  intermeddling  by  which  the  charac- 
ter of  others  is  affected."  And  in  the  same  case  Cresswell,  J.,  said : 
"If  the  property  of  the  ship-owner  on  the  one  hand  was  at  stake,  the 
character  of  the  captain  was  at  stake  on  the  other ;  and  I  cannot  but 
think  that  the  moral  duty  not  to  publish  of  the  latter  defamatory  mat- 
ter which  he  did  not  know  to  be  true  was  quite  as  strong  as  the  duty 
to  communicate  to  the  ship-owner  that  which  he  believed  to  be  true." 

One  may  not  go  about  in  the  community,  and,  acting  upon  mere 
rumors,  proclaim  to  everybody  the  supposed  frailties  or  bad  character 
of  his  neighbor,  however  firmly  he  may  believe  such  rumors,  and  be 
convinced  that  he  owes  a  social  duty  to  give  them  currency,  that  the 
victim  of  them  may  be  avoided ;  and  ordinarily  one  cannot  with  safety, 
however  free  he  may  be  from  actual  malice,  as  a  volunteer,  pour  the 
poison  of  such  rumors  into  the  ears  of  one  who  might  be  affected  if 
the  rumors  were  true.  I  cite  a  few  cases  by  way  of  illustration.  In 
Godson  v.  Home,  i  Brod.  &  B.  7,  one  Noah  solicited  the  plaintiff  to 
be  his  attorney  in  an  action.  The  defendant,  apparently  a  total  stran- 
ger, wrote  to  Noah,  to  deprecate  his  so  employing  the  plaintiff,  and 
this  was  held  to  be  clearly  not  a  confidential  or  privileged  communica- 
tion. In  Storey  v.  Challands,  8  Car.  &  P.  234,  one  Hersford  was 
about  to  deal  with  the  plaintiff,  when  he  met  the  defendant,  who  said 
at  once,  without  his  opinion  being  asked  at  all,  "If  you  have  anything 


SLANDER  AND  LIBEL.  3d 

to  do  with  Storey  you  will  live  to  repent  it.  He  is  a  most  unprin- 
cipled man,"  etc. ;  and  Lord  Denman  directed  a  verdict  for  the  plain- 
tiff, because  the  defendant  began  by  making  the  statement  without 
waiting  to  be  asked.  In  York  v.  Johnson,  116  Mass.  482,  the  de- 
fendant, a  member  of  a  church,  was  appointed,  with  the  plaintiff  and 
other  members  of  the  church,  on  a  committee  to  prepare  a  Christmas 
festival  for  the  Sunday-school.  He  declined  to  serve,  and,  being  asked 
his  reason  by  Mrs.  Newton,  a  member  of  the  committee,  said  that  a 
third  member  of  the  committee,  a  married  man,  had  the  venereal  dis- 
ease, and.  being  asked  where  he  got  it  said  he  did  not  know,  but  that 
"he  had  been  with  the  plaintiff,"  who  was  a  woman;  and  it  was  held 
that  this  was  not  a  privileged  communication.  There  was  no  question 
of  the  defendant's  good  faith  and  reasonable  grounds  of  belief  in  mak- 
ing the  communication,  and  yet  Devens,  J.,  in  the  opinion  said:  "The 
ruling  requested  by  the  defendant,  that  the  communication  made  by 
him  to  Mrs.  Newton  was  a  privileged  one,  and  not  actionable  except 
with  proof  of  express  malice,  was  properly  refused.  There  was  no 
duty  which  he  owed  to  Mrs.  Newton  that  authorized  him  to  inform 
her  of  the  defamatory  charges  against  the  plaintiff,  and  no  interest 
of  his  own  which  required  protection  justified  it.  He  had  declined  to 
serve  upon  the  same  committee  with  Mrs.  York,  but  he  was  under 
no  obligation  to  give  any  reason  therefor,  however  persistently  called 
upon  to  do  so,  and,  even  if  Mrs.  Newton  had  an  interest  in  knowing 
the  character  of  Mrs.  York  as  a  member  of  the  same  church,  it  was 
an  interest  of  the  same  description  which  every  member  of  the  com- 
munity has  in  knowing  the  character  of  other  members  of  the  same 
community  with  whom  they  are  necessarily  brought  in  contact,  and 
would  not  shield  a  person  who  uttered  words  otherwise  slanderous." 
Having  thus  stated  the  general  principles  of  law  applicable  to  a 
case  like  this,  I  will  now  bring  to  mind  the  facts  of  this  case  so  far  as 
they  pertain  to  the  defamatory  letter.  The  plaintiff  was  a  lawyer,  and 
had  been  engaged  in  the  practice  of  his  profession  at  Caledonia  for 
several  months,  and  resided  there  at  the  date  of  the  letter.  Miss  Dora 
McNaughton  and  the  defendant  also  resided  there.  The  plaintiff  was 
on  terms  of  social  intimacy  with  Dora,  and  was  paying  her  attention 
with  a  view  to  matrimony,  and  some  time  subsequently  married  her. 
Mrs.  Collins  was  about  twenty-five  years  old,  two  years  and  a  half 
younger  than  Dora,  and  was  married  November  2,  1875 ;  and  prior 
to  that  she  had  always  resided  within  a  mile  and  a  half  from  the  resi- 
dence of  Dora,  and  they  had  been  very  intimate  friends.  Dora  had  a 
father,  and  no  brother,  and  Mrs.  Collins  had  a  brother.  During  the 
time  of  this  intimacy,  and  at  some  time  before  the  marriage  of  Mrs. 
Collins,  Dora  repeatedly  requested  of  her  that  if  she  "knew  anything 
about  any  young  man  she  went  with,  or  in  fact  any  young  man  in  the 
place,  to  tell  her,  because  her  father  did  not  go  out  a  great  deal,  and 
had  no  means  of  knowing,  and  people  would  not  be  apt  to  tell  him ; ' 


362  LAW  OP  TORTS. 

that  she,  Mrs.  Collins,  had  a  brother,  and  would  be  more  apt  to  hear 
what  was  said  about  young-  men,  and  Dora  wished  her  to  tell  what 
she  knew.  Their  intimacy  continued  after  the  marriage  of  Mrs.  Col- 
lins until  January  before  the  letter  was  written,  when  a  coldness 
sprang  up  between  them.  They  became  somewhat  estranged,  and 
their  intimacy  ceased.  Mrs.  Collins  testified  that  when  she  wrote  the 
letter  she  thought  just  as  much  of  Dora  as  if  she  had  belonged  to 
her  family;  that  she  had  heard  the  defamatory  rumors,  and  believed 
them,  and  therefore  did  not  wish  her  to  marry  the  plaintiff.  It  must 
be  observed  that  the  request  of  Dora  to  Mrs.  Collins  for  information 
about  young  men  was  not  made  when  she  was  contemplating  mar- 
riage to  any  young  man,  and  that  the  request  was  not  for  information 
about  any  particular  young  man,  or  about  any  young  man  in  whom 
she  had  any  interest,  but  it  was  for  information  about  the  young  men 
generally  with  whom  she  associated.  Nor,  literally  construing  the 
language,  did  Dora  wish  for  information  as  to  the  gossip  and  rumors 
afloat  as  to  young  men.  What  she  asked  for  was  such  facts  as  Mrs. 
Collins  knew,  and  not  for  her  opinion  about  young  men,  or  her  esti- 
mation of  them.  But  if  we  assume  that  the  request  was  for  informa- 
tion as  to  all  the  rumors  about  young  men  which  came  to  the  knowl- 
edge of  Mrs.  Collins,  the  case  of  the  defendant  is  not  improved.  At 
that  time  the  plaintiff  was  not  within  Dora's  contemplation,  as  she 
did  not  know  him  until  long  after.  The  request  was  not  for  informa- 
tion as  to  any  young  man  who  might  pay  her  attention  with  a  view 
to  matrimony,  it  was  for  information  about  all  the  young  men  in  her 
circle.  Mrs.  Collins  was  not  related  to  her,  and  was  under  no  duty  to 
give  the  information,  and  Dora  had  no  sufficient  interest  to  receive  the 
information.  Mrs.  Collins  was  under  no  greater  duty  to  give  the 
information  to  Dora  than  to  any  of  the  other  young  ladies  of  her  ac- 
quaintance in  the  same  circle.  She  could  properly  tell  what  she  knew 
about  young  men,  but  could  not  defame  them  even  upon  request  by 
telling  what  she  did  not  know,  what  nobody  knew,  but  what  she  be- 
lieved upon  mere  rumors  and  hearsay  to  be  true.  The  mere  fact 
that  she  was  requested  or  even  urged  to  give  the  information  did  not 
make  the  defamatory  communication  privileged.  York  v.  Johnson, 
supra. 

But  there  is  no  proof  that  this  letter  was  written  to  Dora  in  pur- 
suance of  any  request  made  by  her  four  years  before  its  date,  arid 
there  was  no  evidence  which  authorized  the  jury  to  find  so,  if  they 
did  so  find.  On  the  contrary,  it  is  clear  that  Dora  would  not  at  the 
time  have  gone  to  Mrs.  Collins  for  any  information  as  to  the  plaintiff 
if  she  had  desired  any,  and  that  she  did  not  wish  for  the  information 
from  her;  and  that  this  was  known  to  Mrs.  Collins  the  language  oi 
the  letter  clearly  shows.  In  the  defendant's  answer  it  is  alleged  that 
Mrs.  Collins'  letter  was  prompted  by  her  friendship  for  Dora,  and  by 
the  solicitations  of  "mutual  friends  to  interfere  in  the  matter  and  break 


SLANDER   AND   LIBEL.  363 

ol?  the  relations  which  seemed  to  exist  between  the  plaintiff  and 
Dora,"  and  there  is  no  averment  that  it  was  written  in  pursuance  of 
any  request  coming  from  Dora.  The  letter  itself,  as  well  as  the  evi- 
dence of  Mrs.  Collins,  shows  unmistakably  that  it  was  thus  prompted. 
Mrs.  Collins  did  not  testify  that  she  wrote  the  letter  in  pursuance  of 
any  request  of  Dora,  and  the  action  was  not  tried  upon  that  theory, 
and  no  question  as  to  the  request  was  submitted  to  the  jury.  The 
trial  judge  charged  the  jury  broadly  that  if  the  relations  of  Dora  and 
Mrs.  Collins  were  of  such  an  intimate  character  as  to  warrant  the  lat- 
ter in  warning  the  former  "against  a  person  whom  she  had  reason  to 
believe  was  not  a  fit  person,  and  if  Mrs.  Collins  acted  fairly,  in  good 
faith,  conscientiously,  although  mistakenly,  there  can  be  no  recovery 
against  her"  upon  the  count  in  the  complaint  for  libel ;  and  then  the 
court  said :  "Did  Mrs.  Collins,  in  writing  that  letter,  act  fairly,  act 
judiciously,  not  in  the  matter  of  good  taste,  but  did  she  with  the  facts 
which  had  been  brought  to  her  mind  act  in  a  conscientious  and  proper 
manner?  If  she  did,  if  she  acted  as  an  ordinarily  prudent  person 
would  act  under  the  same  circumstances,  if  she  had  probable  ground 
for  her  belief,  she  was  justified  in  writing  the  letter."  Mrs.  Collins 
then  appears  as  a  mere  volunteer,  writing  the  letter  to  break  up  rela- 
tions which  she  feared  might  lead  to  the  marriage  of  the  plaintiff  to 
Dora.  If  she  had  been  the  mother  of  Dora,  or  other  near  relative, 
or  if  she  had  been  asked  by  Dora  for  information  as  to  the  plaintiff's 
character  and  standing,  she  could  with  propriety  have  given  any  in- 
formation she  possessed  affecting  his  character,  provided  she  acted  in 
good  faith,  and  without  malice.  But  a  mere  volunteer,  having  no  duty 
to  perform,  no  interest  to  subserve,  interferes  with  the  relations  be- 
tween two  such  people  at  her  peril.  The  rules  of  law  should  not  be 
so  administered  as  to  encourage  such  intermeddling,  which  may  not 
only  blast  reputation,  but  possibly  wreck  lives.  In  such  a  case  the 
duty  not  to  defame  is  more  pressing  than  the  duty  to  communicate 
mere  defamatory  rumors  not  known  to  be  true. 

Some  loose  expressions  may  doubtless  be  found  in  text-books  and 
judicial  opinions  supporting  the  contention  of  the  defendant  that  this 
letter  was  in  some  sense  a  privileged  communication.  But  after  a 
very  careful  research  I  believe  there  is  absolutely  no  reported  de- 
cision to  that  effect.  The  case  which  is  as  favorable  to  the  defendant 
as  any,  if  not  more  favorable  than  any  other,  is  that  of  Todd  v.  Hawk- 
ins, 8  Car.  &  P.  88.  In  that  case  a  widow  being  about  to  marry  the 
plaintiff,  the  defendant,  who  had  married  her  daughter,  wrote  her  a 
letter  containing  imputations  on  the  plaintiff's  character,  and  advising 
a  diligent  and  extensive  inquiry  into  his  character;  and  it  was  held 
that  the  letter  was  written  on  a  justifiable  occasion,  and  that  the  de- 
fendant was  justified  in  writing  it,  provided  the  jury  were  satisfied 
that  in  writing  it  he  acted  bona  fide,  although  the  imputations  con- 
tained in  the  letter  were  false,  or  based  upon  the  most  erroneous  in- 


3G4  LAW  OF  TORTS. 

formation,  and  if  he  used  expressions  however  harsh,  hasty,  or  un- 
true, yet  bona  fide,  and  believing  them  to  be  true,  he  was  justified  in 
so  doing.  The  letter  was  held  privileged  solely  upon  the  ground  of 
the  near  relationship  existing  between  the  widow  and  the  defendant, 
her  son-in-law,  which  justified  his  voluntary  interference.  But  the 
judge  expressly  stated  that  if  the  widow  and  defendant  had  been  stran- 
gers to  each  other  there  would  have  been  a  mere  question  of  dam- 
age. A  case  nearer  in  point  is  that  of  Count  Joannes  v.  Bennett,  5 
Allen,  169,  81  Am.  Dec.  738.  There  it  was  held  that  a  letter  to  a 
woman  containing  libelous  matter  concerning  her  suitor  cannot  be 
justified  on  the  ground  that  the  writer  was  her  friend  and  former 
pastor,  and  that  the  letter  was  written  at  the  request  of  her  parents, 
who  assented  to  all  its  contents.  The  decision  was  put  upon  the 
ground  that  in  writing  the  letter  the  defendant  had  no  interest  of  his 
own  to  serve  or  protect ;  that  he  was  not  in  the  exercise  of  any  legal 
or  moral  duty;  that  the  proposed  marriage  did  not  even  involve 
any  sacrifice  of  his  feelings  or  injury  to  his  affections,  and  did  not  in 
any  way  interfere  with  or  disturb  his  personal  or  social  relations ; 
that  the  person  to  whom  the  letter  was  addressed  was  not  connected 
with  him  by  the  ties  of  consanguinity  or  kindred,  and  that  he  had  no 
peculiar  interest  in  her.  Some  years  before,  the  same  learned  court 
decided  the  case  of  Krebs  v.  Oliver,  12  Gray,  239,  wherein  it  was  held 
that  statements  that  a  man  has  been  imprisoned  for  .larceny,  made  to 
the  family  of  a  woman  whom  he  is  about  to  marry,  by  one  who  is  no 
relation  of  either,  and  not  in  answer  to  an  inquiry,  are  not  privileged 
communications.  In  the  opinion  it  is  said:  "A  mere  friendly  ac- 
quaintance or  regard  does  not  impose  a  duty  of  communicating  char- 
ges of  a  defamatory  character  concerning  a  third  person,  although 
they  may  be  told  to  one  who  has  a  strong  interest  in  knowing  them. 
The  duty  of  refraining  from  the  utterance  of  slanderous  words  with- 
out knowing  or  ascertaining  their  truth  far  outweighs  any  claim  of 
mere  friendship."  I  am  therefore  of  opinion  that  the  letter  was  in 
no  sense,  upon  the  facts  as  they  appear  in  the  record,  a  privileged  com- 
munication. 

There  was  also  error  in  the  court  below  as  to  the  verbal  slanders 
alleged  in  the  second  cause  of  action ;  and  what  I  have  already  said 
applies  in  part  to  these  verbal  slanders.  There  was  no  substantial 
denial  of  these  slanders  in  the  answer,  and  there  is  no  dispute  in  the 
evidence  that  they  were  uttered,  and  there  can  be  no  claim  upon  the 
evidence  that  they  were  justified.  The  trial  judge  charged  the  jury 
that  the  words  were  slanderous.  But  he  said  to  them  that  "there  is 
not  that  presumption  of  malice  in  the  case  of  oral  slanders  that  there 
is  in  the  case  of  a  deliberate  writing."  This  was  excepted  to  by  plain- 
tiff's counsel,  and  was  clearly  erroneous.  In  the  case  of  oral  defama- 
tion, as  in  the  case  of  written,  if  the  words  uttered  were  not  privileged 
the  law  implies  malice.  The  judge  further  charged  the  jury,  in  sub- 


SLANDER   AND   LIBEL.  365 

stance,  that  the  words,  if  uttered  under  the  circumstances  testified  to 
by  Mrs.  Collins,  were  privileged.  She  testified,  in  substance,  that  she 
uttered  the  words  to  Mr.  Cameron  in  confidence,  after  the  most  ur- 
gent solicitation  on  his  part  that  she  should  tell  him  what  she  knew 
about  the  plaintiff.  But  defamatory  -words  do  not  become  privileged 
merely  because  uttered  in  the  strictest  confidence  by  one  friend  to 
another,  nor  because  uttered  upon  the  most  urgent  solicitation.  She 
was  under  no  duty  to  utter  them  to  him,  and  she  had  no  interest  to 
subserve  by  uttering  them.  He  had  no  interest  or  duty  to  hear  the 
defamatory  words,  and  had  no  right  to  demand  that  he  might  hear 
them ;  and  under  such  circumstances  there  is  no  authority  holding 
that  any  privilege  attaches  to  such  communications.  There  was  no 
evidence  that  would  authorize  a  jury  to  find  that  Cameron  sought  the 
interview  with  Mrs.  Collins  as  an  emissary  from  or  agent  of  the 
plaintiff,  or  that  at  the  plaintiff's  solicitation  or  instigation  he  obtained 
the  slanderous  communications  from  her;  and  he  did  not  profess  or 
assume  to  act  for  him  on  that  occasion.  He  was  the  mutual  friend  of 
the  parties,  and  seems  to  have  sought  the  interview  with  her  either  to 
gratify  his  curiosity,  or  to  prevent  the  impending  litigation  between 
the  parties.  But,  even  if  he  obtained  the  interview  with  her  at  the 
solicitation  of  the  plaintiff  and  as  his  friend,  she  could  not  claim  that 
her  slanderous  words  uttered  at  such  interview  were  privileged.  The 
trial  judge  therefore  erred  in  refusing  to  charge  the  jury  that  there 
was  no  question  for  them  as  to  the  second  cause  of  action  but  one  of 
damages. 

Therefore,  without  noticing  other  exceptions  to  rulings  upon  the 
trial,  for  the  fundamental  errors  herein  pointed  out  the  judgment 
should  be  reversed,  and  a  new  trial  granted. 

All  concurred,  except  DANFORTH,  J.,  who  dissented. 


(46  N.  Y.  188,  7  Am.  Rep.  322.) 

SUNDERLIN  et  al.  v.  BRADSTREET  et  al. 

(Court  of  Appeals  of  New  York.    September  7,  1871.) 

LIBEL— PBIVILEGED   COMMUNICATIONS— MERCANTILE  AGENCY. 

Proprietors  of  a  mercantile  agency,  whose  business  is  collecting  and 
communicating  to  subscribers  information  as  to  the  character,  credit,  and 
pecuniary  responsibility  of  merchants,  are  liable  for  a  false  and  injurious 
report  of  the  failure  of  certain  merchants,  published  and  circulated  among 
all  the  subscribers ;  as  such  a  communication  is  privileged  only  when 
made  in  good  faith,  to  one  having  an  interest  in  the  information.  That 
the  libelous  statement  was  in  cipher,  understood  by  the  subscribers  only, 
is  not  material. 

Appeal  from  Supreme  Court,  General  Term,  Seventh  Judicial  Dis- 
trict. 


366  LAW   OF   TORTS. 

Action  by  Lewis  Sunderlin  and  others  against  Henry  Bradstreet 
and  others  for  libel.  Defendants,  proprietors  of  a  mercantile  agency, 
published  and  circulated  among  the  subscribers  to  their  agency  a  re- 
port that  plaintiffs,  who  were  merchants,  had  failed.  The  report  was 
admitted  to  be  false.  At  the  trial,  a  verdict  was  rendered  for  plaintiffs, 
and  defendants'  exceptions  were  prdered  to  be  heard  in  the  first  in- 
stance at  the  general  term,  which  overruled  the  exceptions,  and  di- 
rected judgment  for  plaintiffs  on  the  verdict.  Defendants  appealed 
from  the  judgment. 

ALLEN,  J.  The  only  question  presented  by  the  appeal  has  respect 
to  the  character  and  occasion  of  the  publication  of  the  alleged  libel, 
and  is,  whether  the  circumstances  and  occasion  of  the  publication  were 
such  as  to  absolve  the  defendants  from  liability,  in  the  absence  of  proof 
of  express  malice  ;  that  is,  whether  it  is  within  the  protection  of  privi- 
leged communications.  We  might  properly  decide  this  question  upon 
the  authority  of  Taylor  v.  Church,  8  N.  Y.  452,  in  which  this  precise 
question  was  determined  by  a  unanimous  court,  seven  judges  taking 
part  in  the  decision,  the  other  judge  refraining  from  expressing  in 
opinion,  for  the  reason  that  he  was  not  present  at  the  argument.  The 
point  was  made  upon  the  trial  of  the  action,  and  presented  by  counsel 
upon  appeal  in  this  court,  and  was  material  to  be  decided  for  the 
guidance  of  the  court  below,  upon  a  retrial  which  this  court  ordered, 
inasmuch  as,  if  the  publication  was  privileged,  it  would  probably  be 
fatal  to  the  plaintiff's  cause  of  action,  and  the  court,  by  a  deliberate 
and  formal  resolve,  adjudged  that  the  alleged  libel  was  not  a  privileged 
communication.  The  circumstances  under  which  this  judgment  was 
given,  as  well  as  the  method  adopted  by  the  judges  in  determining 
this  precise  question  by  a  formal  declaration,  entitle  the  decision  to 
peculiar  weight  as  an  authority.  That  case  cannot  be  distinguished 
from  this  in  any  circumstance  favorable  to  the  defendant. 

The  decision,  as  abstracted  by  the  reporter,  was  that  "one  who  un- 
dertakes, for  an  association  of  merchants  in  New  York,  to  ascertain 
the  pecuniary  standing  of  merchants  and  traders  residing  in  other 
places,  who  are  customers  of  some  of  the  members  of  the  association, 
and  who  furnishes  reports  to  all  the  members  of  the  association,  ir- 
respective of  the  question  whether  they  have  an  interest  in  the  ques- 
tion of  the  standing  of  such  merchants  and  traders,  is  liable  for  any 
false  report  made  by  him  prejudicial  to  the  credit  of  the  subject  of  it, 
although  made  honestly,  and  from  information  upon  which  he  relied." 
In  the  case  before  us,  the  defendants  were  in  no  sense  the  agents  of 
an  association  of  merchants,  or  of  their  patrons.  Of  their  own  voli- 
tion, and  for  their  own  profit,  they  established  a  bureau  for  collecting 
and  disseminating  information  as  to  the  character,  credit,  and  pecuni- 
ary responsibility  of  merchants  and  traders  throughout  the  United 
States.  The  business  is  in  the  nature  of  an  intelligence  office ;  and  it 


SLANDER  AND   LIBEL.  3G7 

is  not  intended  by  this  to  intimate  that  it  is  not  an  entirely  lawful  and 
reputable  business ;  or  that  it  is  not  of  general  utility ;  or  perhaps  a 
necessity  to  the  commerce  and  business  of  the  country.  All  may  be 
conceded  that  is  claimed  for  it  by  its  friends ;  but  in  its  conduct  and 
management  it  must  be  subjected  to  the  ordinary  rules  of  law,  and 
its  proprietors  and  managers  held  to  the  liability  which  the  law  at- 
taches to  like  acts  by  others.  The  information  acquired  by  them  was 
their  own,  and  was  communicated  to  others  or  made  public  in  such 
form  and  upon  such  terms  as  the  defendants  dictated.  In  the  estab- 
lished course  of  their  business,  they  communicated  with  their  patrons 
by  means  of  semi-annual  publications,  with  weekly  corrections  printed 
and  furnished  to  each ;  the  number  of  copies  of  each  publication  being 
about  10,000,  distributed  to  every  part  of  the  country,  among  mer- 
chants, bankers,  and  traders.  The  alleged  libel  was  published  in  one 
of  the  weekly  corrections  of  the  regular  semi-annual  publications,  and 
was  thus  extensively  circulated.  Its  distribution  was  general  among 
all  the  subscribers  to  the  defendants'  publications,  irrespective  of  their 
interest  in  the  question  of  the  plaintiffs'  credit  and  standing. 

Whether  a  libel  or  slander  is  within  the  protection  accorded  to  privi- 
leged communications  depends  upon  the  occasion  of  the  publication 
or  utterance,  as  well  as  the  character  of  the  communication.  The 
party  must  have  a  just  occasion  for  speaking  or  publishing  the  defam- 
atory matter.  A  communication  is  privileged,  within  the  rule,  when 
made  in  good  faith,  in  answer  to  one  having  an  interest  in  the  infor- 
mation sought;  and  it  will  be  privileged  if  volunteered  when  the 
party  to  whom  the  communication  is  made  has  an  interest  in  it,  and 
the  party  by  whom  it  is  made  stands  in  such  relation  to  him  as  to 
make  it  a  reasonable  duty,  or,  at  least,  proper  that  he  should  give  the 
information.  Todd  v.  Hawkins,  8  Car.  &  P.  88 ;  Cockayne  v.  Hodg- 
kisson,  5  Car.  &  P.  543;  Washburn  v.  Cooke,  3  Denio,  no;  per  Sel- 
den,  J.,  Lewis  v.  Chapman,  16  N.  Y.  369.  It  is  not  necessary  to  go 
further  in  this  case ;  and  it  may  be  assumed  that,  if  any  one  having 
an  interest  in  knowing  the  credit  and  standing  of  the  plaintiffs,  or 
whom  the  defendants  supposed  and  believed  had  such  interest,  had 
made  the  inquiry  of  the  defendants,  and  the  statement  in  the  alleged 
libel  had  been  made  in  answer  to  the  inquiry  in  good  faith,  and  upon 
information  upon  which  the  defendants  relied,  it  would  have  been  priv- 
ileged. This  was  the  case  of  Ormsby  v.  Douglass,  37  N.  Y.  477.  The 
business  of  the  defendant  in  that  action  was  of  a  similar  character  to 
that  of  the  present  defendants ;  and  the  statement  complained  of  was 
made  orally,  to  one  interested  in  the  information,  upon  personal  ap- 
plication at  the  office  of  the  defendant,  who  refused  to  make  a  written 
statement.  There  was  no  other  publication,  and  it  was  held  that  the 
occasion  justified  the  defendant  in  giving  such  information  as  he  pos- 
sessed to  the  applicant.  Taylor  v.  Church  was  referred  to  as  authority 
for  the  rule,  and,  so  far  from  being  overruled  or  questioned,  was  af- 


368  LAW  OF  TORTS. 

firmed.  The  decision  in  Taylor  v.  Church  was  placed  upon  the  ground 
that  the  alleged  libel  was  printed  by  the  procurement  of  the  defend- 
ant, and  distributed  by  him  to  persons  having  no  special  interest  in 
being  informed  of  the  condition  of  the  plaintiffs'  firm.  In  the  case  at 
bar,  it  is  not  pretended  but  that  few,  if  any,  of  the  persons  to  whom 
the  10,000  copies  of  the  libelous  publication  were  transmitted  had  any 
interest  in  the  character  or  pecuniary  responsibility  of  the  plaintiffs, 
and  to  those  who  had  no  such  interest  there  was  no  just  occasion  or 
propriety  in  communicating  the  information.  The  defendants,  in  mak- 
ing the  communication,  assumed  the  legal  responsibility  which  rests 
upon  all  who,  without  cause,  publish  defamatory  matter  of  others ; 
that  is,  of  proving  the  truth  of  the  publication,  or  responding  in  dam- 
ages to  the  injured  party.  The  communication  of  the  libel  to  those 
not  interested  in  the  information  was  officious  and  unauthorized,  and 
therefore  not  protected,  although  made  in  the  belief  of  its  truth,  if 
it  were,  in  point  of  fact,  false.  When  a  communication  is  made  in  the 
discharge  of  some  public  or  private  duty,  the  occasion  prevents  the 
inference  of  malice  which  the  law  draws  from  unauthorized  communi- 
cations, and  affords  a  qualified  defense,  depending  on  the  absence  of 
malice.  Toogood  v.  Spyring,  I  Cromp.  M.  &  R.  181 ;  Fowles  v. 
Bowen,  30  N.  Y.  20.  There  has  been  no  diversity  in  the  utterances 
of  judges  and  courts  upon  the  subject,  but  all  have  spoken  one  lan- 
guage. See  Beardsley  v.  Tappan,  5  Blatchf.  498,  Fed.  Cas.  No.  1,189. 
In  those  cases  in  which  the  publication  has  been  held  privileged,  the 
courts  have  held  that  there  was  a  reasonable  occasion  or  exigency, 
which,  for  the  common  convenience  and  welfare  of  society,  fairly  war- 
ranted the  communication  as  made.  But  neither  the  welfare  nor  con- 
venience of  society  will  be  promoted  by  bringing  a  publication  of  mat- 
ters, false  in  fact,  injuriously  affecting  the  credit  and  standing  of  mer- 
chants and  traders,  broadcast  through  the  land,  within  the  protection 
of  privileged  communications.  The  principle  of  Taylor  v.  Church  is 
recognized  in  all  the  cases.  Harris  v.  Thompson,  13  C.  B.  333 ;  Van 
Wyck  v.  Aspinwall,  17  N.  Y.  190;  Harrison  v.  Bush,  5  El.  &  Bl.  344; 
Goldstein  v.  Foss,  6  Barn.  &  C.  158;  Getting  v.  Foss,  3  Car.  &  P. 
1 60.  The  fact  that  the  libelous  statement  was  in  cipher  is  not  ma- 
terial. It  was  in  language  understood  by  the  numerous  patrons  of 
the  defendants  and  all  the  subscribers  to  the  publications.  They  had 
the  key  to  the  cipher,  and  the  publication  was  equally  significant  and 
injurious  as  if  made  in  the  distinct  terms,  in  the  very  words,  indicat- 
ed by  the  numeral  figures  used.  The  judgment  should  be  affirmed. 

All  concur. 

Judgment  affirmed. 

(To  the  same  effect  are  Erber  v.  Dun  [O.  C.]  12  Fed.  526;  Trussell  v. 
Scarlett  [C.  C.]  18  Fed.  214;  Locke  v.  Bradstreet  Co.  [C.  C.]  22  Fed.  771; 
King  v.  Patterson,  49  N.  J.  Law,  417,  9  Atl.  705,  60  Am.  Rep.  622 ;  Pollasky 
v.  Minchener,  81  Mich.  280,  46  N.  W.  5,  9  L.  R.  A.  102,  21  Am.  St  Rep.  516; 


SLANDER  AND  LIBEL.  360 

Mitchell  v.  Bradstreet  Co.,  116  Mo.  226,  22  S.  W.  358,  724,  20  L.  R.  A.  138, 
38  Am.  St.  Rep.  592.  Where  the  agency  had  received  from  one  of  its  agents 
the  information  about  a  merchant  that  he  had  made  an  assignment  to  secure 
the  assignee  for  indorsing  a  note,  but  in  communicating  the  information  to 
subscribers  it  stated  that  the  merchant  had  made  a  general  assignment  for 
the  benefit  of  creditors,  held,  that  this  departure  from  the  information  r& 
ceived,  if  due  to  carelessness,  destroyed  the  privilege.  Douglass  v.  Daisle; 
114  Fed.  628,  52  C.  C.  A.  324,  57  L.  R.  A.  475.) 


(59  Mich.  467,  26  N.  W.  671,  60  Am.  Rep.  307.) 

BRONSON  v.  BRUCE  (in  part). 
(Supreme  Court  of  Michigan.     February  3,  1886.) 

L  LIBEL — NEWSPAPER  PUBLICATIONS  CONCEBNING  CANDIDATES  FOB  OFFICE— 
MALICE — PRIVILEGED  COMMUNICATIONS— DAMAGES. 

The  qualifications  and  acts  of  public  officers  and  candidates  for  offlc' 
may  be  freely  commented  upon  and  criticised  by  newspapers,  or  voters, 
or  others  having  an  interest,  if  the  comment  be  bona  flde  and  without 
malice ;  but  false  charges  of  crime  against  officers  or  candidates,  though 
made  without  malice  and  in  an  honest  belief  of  their  truth,  are  not  priv- 
ileged communications. 

2.  SAME. 

A  candidate  for  congress  was  accused,  in  a  newspaper  published  in  his 
congressional  district,  with  forgery,  with  stealing  the  deposits  of  poor 
men,  and  with  cheating  laboring  men  of  their  hard  earnings.  Held,  that 
these  charges  were  not  privileged,  even  if  published  with  belief  in  their 
truth. 

Error  to  Mecosta. 

CHAMPLJN,  J.  At  the  general  election  in  the  year  1882,  the 
'plaintiff  was  a  candidate  for  congress.  The  defendant  was  then  editor 
and  publisher  of  the  Big  Rapids  Current,  a  newspaper  published  in 
the  city  of  Big  Rapids,  in  the  county  of  Mecosta,  and  circulated  in 
that  and  other  counties  in  the  congressional  district  which  was  sought 
to  be  represented  in  congress  by  the  plaintiff,  as  well  as  in  other  coun- 
ties of  the  state  outside  of  said  district.  The  defendant,  through  the 
columns  of  his  newspaper,  opposed  the  election  of  the  plaintiff  to  the 
office  for  which  he  was  a  candidate,  and  supported  the  election  of 
the  opposing  candidates.  After  the  plaintiff  was  placed  in  nomination 
for  the  office,  and  before  the  election  to  be  held  for  representative  in 
congress,  the  defendant  published  in  his  paper,  and  circulated  through- 
out the  district,  and  sent  the  same  to  exchanges  in  other  parts  of  the 
state,  certain  articles  concerning  the  plaintiff  which  the  plaintiff  claims 
to  be  libelous,  and  this  action  is  brought  to  recover  damages  therefor. 
The  defendant  pleaded  the  general  issue,  and  gave  notice  (i)  that  he 
would  prove  that  he  was  justified  in  so  doing,  for  the  reason  that  the 
alleged  defamatory  matter,  and  the  several  statements  in  the  articles 
CHASE  (2o  ED.) — 24 


370  LAW  OF  TORTS. 

so  published  by  defendant,  were  each  true  in  substance  and  in  fact  as 
published ;  and  (2)  that  the  same  was  a  privileged  communication, 
and  statements  therein  were  bona  fide  comments  upon  the  acts  and 
statements  of  said  plaintiff  of  the  several  matters  referred  to  therein, 
and  of  the  acts,  statements,  and  conduct  of  the  plaintiff  in  reference 
thereto,  and  of  and  concerning  the  plaintiff  as  a  public  man,  and  made 
for  the  public  good,  and  were  published  as  such  comments  without 
any  malicious  intent  or  motive  whatever.  At  the  trial  the  publication 
was  not  disputed,  or  that  the  article  is  libelous  if  not  true.  It  charged 
him  with  the  crime  of  forgery ;  of  the  theft  of  deposits  of  poor  men 
and  women ;  and  of  cheating  laboring  men  of  their  hard  earnings. 

The  learned  judge,  after  stating  that  privileged  communications  are 
of  two  kinds,  and  defining  and  illustrating  what  is  absolute  privilege, 
instructed  the  jury  relative  to  qualified  privilege  as  follows :  "There 
is  another  kind  of  privilege  which  is  not  absolute,  but  which  is  condi- 
tioned, on  the  theory  that  there  is  no  malice  on  the  part  of  the  person 
uttering  the  communication  or  publishing  the  libel.  It  is  competent 
— it  is  justifiable — for  the  press  to  comment  upon  the  character  and 
standing — intellectually,  morally,  physically,  and  otherwise — of  a  man 
who  offers  himself  as  a  candidate  for  office  of  trust.  I  say  it  is  com- 
petent to  do  that,  depending,  of  course,  upon  the  circumstances  of 
the  case  and  the  surroundings.  When  a  man  sees  fit  to  take  the  stand 
before  his  constituency  for  a  public  position  and  public  honors,  he 
thereby,  to  a  certain  extent,  makes  himself  public  property,  subjects 
himself  to  criticism  by  his  constituency.  And  if  it  is  made  to  appear 
that  the  criticism  is  just,  is  proper,  is  made  in  good  faith,  is  made  with- 
out malice  and  for  the  public  good,  for  the  purpose,  as  supposed  by 
the  person  at  the  time,  to  prevent  an  incompetent  and  unfit  and  unsuit- 
able person  from  receiving  the  majority  of  the  votes  of  the  electors  of, 
the  district,  or  as  the  case  may  be,  that  article  is  prirna  facie  privileged, 
and  the  law  will  require  of  the  party  who  complains  of  the  article  to 
show  that  the  same  was  published  with  bad  motives,  and  not  for  good 
ends  and  purposes.  *  *  *  When  that  is  shown,  that  privilege' 
vanishes,  and  it  is  no  longer  a  protection  to  the  person  apparently 
covered  by  it  in  the  first  instance.  In  this  case,  gentlemen,  it  appears 
beyond  dispute  that,  at  the  time  of  the  publication  of  these  articles, 
Mr.  Bronson  was  a  candidate  on  a  fusion  ticket  for  congress  from 
this  congressional  district,  and  was  then  before  the  people  for  that 
purpose.  These  articles  were  published  of  and  concerning  him,  re- 
flecting upon  his  character  and  standing  as  a  man,  and  his  connection 
with  the  Exchange  Bank,  etc.  And  it  is  claimed  by  Mr.  Bruce  that  he 
published  these  with  good  motives  and  justifiable  ends,  and  with  no 
malice  whatever.  That  is  his  claim.  If  that  is  true;  if  he  had  no 
malice,  no  disposition  to  specially  injure  this  man,  Mr.  Bronson,  but 
published  the  same  in  good  faith,  honestly  believing  that  the  occasion 
required  it, — then  the  communication  is  privileged,  and  the  plaintiff 


SLANDER   AND   LIBEL.  371 

cannot  recover  in  this  suit,  even  though  the  communications  them- 
selves were  false;  because  if  they  were  privileged  by  the  occasion, 
that  is  a  complete  justification  to  the  action.  Right  here  is  the  start- 
ing point  in  the  case:  Were  the  articles  privileged?  They  are  prima 
facie  privileged  by  the  occasion,  in  my  judgment,  and  I  so  charge  you 
as  matter  of  law.  But  it  will  be  for  you  to  determine  whether  this 
man  Bruce,  in  the  publication  of  the  article,  was  actuated  by  private 
malice,  or  malice  of  any  sort,  at  that  time.  If  so,  then  that  privilege 
ceased." 

The  constitution  of  this  state  provides  that  "no  law  shall  .ever  be 
passed  to  restrain  or  abridge  the  liberty  of  speech  or  of  the  press; 
but  every  person  may  freely  speak,  write,  and  publish  his  sentiments 
on  all  subjects,  being  responsible  for  the  abuse  of  such  right."  Article 
4,  §  42.  The  publisher  of  a  newspaper  possesses  no  immunity  from 
liability  in  publishing  a  libel  other  or  different  than  any  other  person. 
The  law  makes  no  distinction  between  the  newspaper  publisher  and 
any  private  person  who  may  _  publish  an  article  in  a  newspaper  or 
other  printed  form ;  and  if  either  of  them  abuses  the  right  to  publish 
his  sentiments  on  any  subject  and  upon  any  occasion,  he  must  defend 
himself  upon  the  same  legal  ground. 

As  was  said  by  the  supreme  court  of  West  Virginia  in  Sweeney  v. 
Baker,  13  W.  Va.  183,  31  Am.  Rep.  757:  "The  fact  that  one  is  a  can- 
didate for  office  in  the  gift  of  the  people  affords,  in  many  instances, 
a  legal  excuse  for  publishing  language  concerning  him  as  sucli  can- 
didate for  which  publication  there  would  be  no  legal  excuse  if  he  did 
not  occupy  the  position  of  such  candidate,  whether  the  publication  is 
made  by  the  proprietors  of  a  newspaper,  or  by  a  voter  or  other  per- 
son having  an  interest  in  the  election.  The  conduct  and  actions  of 
such  candidate  may  be  freely  commented  upon,  his  acts  may  be  can- 
vassed, and  his  conduct  boldly  censured.  Nor  is  it  material  that  such 
criticism  of  conduct  should,  in  the  estimate  of  the  jury,  be  just.  The 
right  to  criticise  the  action  or  conduct  of  a  candidate  is  a  right,  on 
the  part  of  the  party  making  the  publication,  to  judge  himself  of  the 
justness  of  the  criticism.  If  he  was  liable  for  damages  in  an  action  for 
libel  for  a  publication  criticising  the  conduct  or  action  of  such  a  can- 
didate, if  a  jury  should  hold  his  criticism  unjust,  his  right  of  criticism 
would  be  a  delusion, — a  mere  trap.  The  only  limitation  to  the  right 
of  criticism  of  the  acts  or  conduct  of  a  candidate  for  an  office  in  the 
gift  of  the  people  is  that  the  criticism  be  bona  fide.  As  this  right  of 
criticism  is  confined  to  the  acts  or  conduct  of  such  candidate,  when- 
ever the  facts  which  constitute  the  act  or  conduct  criticised  are  not 
admitted,  they  must  of  course  be  proven.  *  *  *  His  talents  and 
qualification,  mentally  and  physically,  for  the  office  he  asks  at  the 
hands  of  the  people  may  be  freely  commented  on  in  publications  in  a 
newspaper,  and,  though  such  comments  be  harsh  and  unjust,  no  mal- 
ice will  be  implied;  for  these  are  matters  of  opinion  of  which  the 


372  LAW  OF  TORTS. 

voters  are  the  only  judges ;  but  no  one  has  a  right  by  a  publication 
to  impute  to  such  candidate,  falsely,  crimes,  or  publish  allegations 
affecting  his  character  falsely." 

The  authorities  are  numerous,  and  fully  sustain  the  position  that  a 
publication  in  a  newspaper  concerning  either  a  public  officer,  or  a 
candidate  for  an  elective  office,  which  falsely  imputes  to  him  a  crime, 
is  not  privileged  by  the  occasion,  either  absolutely  or  qualifiedly,  but 
such  publication  is  actionable  per  se ;  the  law  imputing  malice  to  the 
publisher  or  author.  Comm.  v.  Clap,  4  Mass.  165 ;  Curtis  v.  Mussey,  6 
Gray,  261 ;  Aldrich  v.  Press  Printing  Co.,  9  Minn.  133  (Gil.  123) ; 
Seely  v.  Blair,  Wright  (Ohio)  358,  683;  Root  v.  King,  7  Cow.  613; 
King  v.  Root,  4  Wend.  113;  Rearick  v.  Wilcox,  81  111.  77,  81 ;  Com. 
v.  Odell,  3  Pittsb.  449-459 ;  Brewer  v.  Weakley,  2  Overt.  99. 

The  electors  of  a  congressional  district  are  interested  in  knowing 
the  truth,  not  falsehoods,  concerning  the  qualifications  and  character 
of  one  who  offers  to  represent  them  in  congress ;  and  it  is  the  right 
and  privilege  of  any  elector,  or  person  also  having  an  interest  to  be 
represented,  to  freely  criticise  the  acts  and  conduct  of  such  candidate, 
and  show,  if  he  can,  why  such  person  is  unfit  to  be  intrusted  with  the 
office,  or  why  the  suffrages  of  the  electors  should  not  be  cast  for  him. 
But  defamation  is  not  a  necessary  and  indispensable  concomitant  of 
an  election  contest. 

If  public  virtue  is  to  prevail,  and  distinguish  the  execution  of  high 
public  trusts,  candidates  for  those  positions  must  be  men  of  virtue, 
as  well  as  men  of  character  and  capability;  and  the  stability  of  our 
institutions  in  a  great  measure  depends  upon  the  confidence  and 
esteem  in  which  those  occupying  such  high  positions  are  held  by  their 
fellow-citizens.  This  cannot  be  attained  if  charges  of  crime  against 
them,  which  are  falsely  made  or  circulated  in  the  community,  are 
absolutely  privileged,  though  made  in  good  faith.  I  think  the  circuit 
judge  erred  in  laying  down  such  rule. 

The  judgment  must  be  reversed,  and  a  new  trial  granted.  The  other 
justices  concurred. 

(This  is  the  generally  established  doctrine,  both  in  England  and  this  coun- 
try. See,  for  example,  as  to  public  officers,  Davis  v.  Shepstone,  L.  R.  11  App. 
Cas.  187 ;  Post  Pub.  Co.  v.  Hallam,  59  Fed.  530,  8  C.  C.  A.  201 ;  Burt  v.  Ad- 
vertiser Newspaper  Co.,  154  Mass.  238,  28  N.  E.  1,  13  L.  R.  A.  97;  Bee  Pub. 
Co.  v.  Shields  [Neb.]  94  N.  W.  1029;  Herringer  v.  Ingberg  [Minn.]  97  N.  W. 
460;  Hamilton  v.  Eno,  81  N.  Y.  116;  Benton  v.  State,  59  N.  J.  Law,  551,  36 
Atl.  1041.  As  to  candidates  for  office,  see  Donahoe  v.  Star  Pub.  Co.  [Del.] 
55  Atl.  337;  Coffin  v.  Brown,  94  Md.  190,  50  Atl.  567,  55  L.  R.  A.  732,  89 
Am.  St.  Rep.  422;  Jarman  v.  Rea,  137  Cal.  339,  70  Pac.  216;  Smurthwaite 
v.  News  Pub.  Co.,  124  Mich,  377,  83  N.  W.  116;  Smith  v.  Burrus,  106 
Mo.  94,  16  S.  W  881,  13  L.  R.  A.  59,  27  Am.  St.  Rep.  329.  But  the  discrimina- 
tion between  "comment"  or  "criticism"  on  the  one  hand,  and  "false  accusa- 
tion" on  the  other,  is  sometimes  found  difficult.  Eikhoff  v.  Gilbert,  124  Mich. 
353,  83  N.  W.  110,  51  L.  R.  A.  451 ;  Evening  Post  Co.  V.  Richardson  [Ky.J  68 
S.  W.  665. 


SLANDER  AND  LIBBL.  373 

In  a  few  states  an  action  will  not  lie,  even  if  false  charges  are  made  against 
public  men,  if  they  are  made  in  good  faith,  with  an  honest  belief  in  their 
truth,  and  solely  for  the  purpose  of  informing  the  electors.  State  v.  Balch, 
31  Kan.  465,  2  Pac.  609 ;  Bays  v.  Hunt,  60  Iowa,  251.  14  N.  W.  785 ;  State  v. 
Keenan,  111  Iowa,  286,  82  N.  W  792.  It  is  sometimes  added  that  the  charges 
must  be  based  on  reasonable  grounds.  O'Rourke  v.  Publishing  Co.,  89  Me. 
810,  36  Atl.  398. 

An  analogous  doctrine,  now  well  settled,  is  that  any  one  may  comment 
upon  matters  of  public  interest,  if  the  comment  be  fair  and  reasonable  and 
without  malice ;  as,  e.  g.,  upon  theatrical  and  other  public  performances 
[Cherry  v.  Des  Moines  Leader,  114  Iowa,  298,  86  N.  W.  323,  54  L.  R.  A.  855, 
89  Am.  St.  Rep.  365;  McQuire  v.  Western  Morning  News  Co.  (1903)  2  K.  B. 
100] ;  public  exhibitions,  and  whatever  is  there  exhibited,  as  paintings,  stat- 
uary, etc.  [Gott  v.  Pulsifer,  122  Mass.  235,  23  Am.  Rep.  322,  also  ante,  p.  69 ; 
Thompson  v.  Shackell,  M.  &  M.  187] ;  published  books'and  articles  [Campbell  v. 
Spottiswoode,  3  B.  &  S.  769 ;  Reade  v.  Sweetzer,  6  Abb.  Pr.  (N.  S.)  9] ;  the  archi- 
tecture of  public  buildings  [Bearce  v.  Bass,  88  Me.  540,  34  Atl.  411,  51  Am.  St 
Rep.  446] ;  the  way  in  which  public  affairs  are  conducted,  etc.  [Wason  v. 
Walter,  L.  R.  4  Q.  B  73;  Purcell  v.  Sowler,  L.  R.  2  C.  P.  D.  218;  Wilcox 
v.  Moore,  69  Minn.  49,  71  N.  W.  917]. 

The  publication  of  a  fair  and  true  report  of  legislative  and  judicial  pro- 
ceedings is  also  privileged,  even  -though  such  proceedings  contain  defamatory 
matter.  Garby  v.  Bennett,  166  N.  Y.  392,  59  N.  E.  1117 ;  Conner  v.  Standard 
Pub.  Co.,  183  Mass.  474,  67  N.  E.  596;  Macdougall  v.  Knight,  17  Q.  B.  D. 
636;  Kimber  v.  Press  Ass'n  [1893]  1  Q.  B.  65;  Stuart  v.  Press  Pub.  Co., 
83  App.  Div.  467,  82  N.  Y.  Supp.  401 ;  Beiser  v  Scripps-McRae  Pub.  Co.  [Ky.] 
68  S.  W.  457.) 


(122  N.  Y.  445,  25  N.  E.  919.) 

WOODS  v.  WIMAN. 
(Court  of  Appeals  of  New  York,  Second  Division.     December  2,  1890.) 

LIBEL— PETITION  TO  GOVERNOR  OF  STATE — PRIVILEGE— PUBLICATION. 

Information  communicated  to  the  governor  of  a  state  by  citizens  thereof 
for  the  purpose  of  influencing  his  action  on  a  bill  which  has  passed  the 
legislature  is  prima  facie  privileged ;  and,  if  a  printed  pamphlet  contain- 
ing the  information  is  given  to  the  governor  himself  and  to  no  one  else, 
an  action  for  libel  will  not  lie  in  behalf  of  a  person  as  to  whom  the 
pamphlet  contains  defamatory  matter,  there  being  no  evidence  of  malice ; 
but  if  the  communication  is  unnecessarily  published  to  other  persons, 
such  publication  is  not  privileged 

Appeal  from  a  judgment  of  the  general  term  of  the  second  judicial 
department,  affirming  a  judgment  dismissing  the  complaint. 

When  the  bill  which  became  chapter  672  of  the  Laws  of  1886,  re- 
lating to  imprisonment  for  debt,  was  pending  in  the  legislature,  Mr. 
Edward  P.  Wilder,  a  lawyer,  published  a  pamphlet  in  opposition  to 
its  passage.  Mr.  Gilbert  R.  Hawes,  a  lawyer,  was  retained  by  the 
debtors  imprisoned  in  Ludlow-Street  jail  to  advocate  the  passage  of 
the  measure,  and,  to  advance  this  purpose,  one  McDonald,  then  im- 
prisoned in  that  jail  on  an  execution  against  his  person,  took  from  his 


374  LAW   OF   TORTS. 

fellow-prisoners  statements  of  the  causes  and  circumstances  of  their 
confinement,  which  he  reduced  to  writing,  and  delivered  to  Mr. 
Hawes.  A  few  copies  of  these  statements  were  printed  in  a  pamphlet 
bearing  this  title :  "Prisoners  now  in  Ludlow-Street  jail.  A  true 
statement  of  the  facts  in  each  case  where  a  party  has  been  imprisoned 
for  debt.  In  answer  to  the  pamphlet  issued  by  E.  P.  Wilder."  The 
pamphlet  contained  the  following,  among  other  statements :  "In  re 
Terrence  Monett.  About  nine  years  ago  sued  on  breach  of  promise 
to  marry,  which  he  never  made.  An  open  secret  that  plaintiff  had 
similar  relations  for  money  with  five  or  six  others  ;  but,  being  married 
men,  their  evidence  unattainable  at  trial.  Sympathy  for  her  sex. 
Awarded  $6,000  damages.  His  interest  sold  by  sheriff  at  sale,  and 
bought  by  plaintiff  for  $5,500.  The  matter  then  slept  for  eight  years, 
when  an  attorney,  a  friend  of  plaintiff,  dug  it  up.  Both  plaintiff  and 
defendant  had  always  lived  in  Brooklyn,  and  still  so  in  December, 
1884,  and  the  suit  and  judgment  had  in  Brooklyn  court.  Instead  of 
issuing  execution  against  him  where  they  both  lived,  and  where  the 
court  was  that  granted  judgment,  they  had  him  decoyed  from  Brook- 
lyn to  New  York,  whither  they  had  brought  over  the  execution 
against  the  person,  thus  cutting  off  from  bail  in  place  of  domicile ; 
further  embarrassing,  as  New  York  sheriff  requires  bondsmen  within 
his  limits.  Also  saved  plaintiff  expense  of  support  in  Brooklyn  jail, 
and,  to  increase  disadvantages  of  defendant,  omitted  to  credit  him, 
on  judgment,  with  $5,500,  bid  for  his  interest  in  the  property  at  sher- 
iff's sale  by  plaintiff  eight  years  before,  so  he  was  thus  arrested  on 
full  amount,  $6,000,  of  judgment.  Thus  debarred  from  ability  to  give 
bail,  has  been  eighteen  months  in  jail.  On  trying  to  go  out  under 
Fourteen  Day  Act,  could  not  produce  written  vouchers  for  expendi- 
ture of  a  few  hundred  dollars  eight  or  nine  years  ago ;  so  judge  said 
oral  evidence  was  not  sufficient,  and  denied  application.  His  wife's 
friends  offer  to  subscribe  balance  really  due  on  judgment,  but  plain- 
tiff says  that,  as  she  cannot  have  him,  his  wife  (now  of  nine  years) 
shall  not.  So  this  kind  of  a  woman  actually  separates  man  and  wife 
to  be  gratified  in  her  spiteful  feelings ;  but,  worst  of  all,  public  law 
aids  such."  The  bill  excited  much  public  interest  and  discussion,  and 
a  committee  was  appointed,  of  which  the  defendant  was  chairman,  to 
advocate  its  passage  and  approval  by  the  executive.  After  the  bill 
had  passed  the  legislature,  the  governor  fixed  a  day  for  hearing  a 
public  discussion  of  its  merits.  For  the  purpose  of  influencing  the 
executive  action,  and  as  an  answer  to  the  pamphlet  put  forth  by  Mr. 
Wilder,  a  few  copies  of  the  statements  of  the  prisoners,  as  taken  by 
Mr.  McDonald,  were  carried  to  the  capitol,  and  one  of  them  was  sub- 
mitted by  the  defendant  to  the  executive  with  resolutions  adopted  by 
the  chamber  of  commerce,  and  a  memorial  signed  by  several  hun- 
dred of  the  citizens  of  New  York  and  Brooklyn  advocating  the  bill. 
It  is  alleged  in  behalf  of  the  plaintiff  that  the  defendant  gave  a  copy 


SLANDER   AND   LIBEL.  375 

of  the  pamphlet  to  the  governor,  and  distributed  several  copies  to 
persons  in  the  executive  chamber,  for  which  alleged  publications  she 
seeks  to  recover  damages.  On  the  trial,  the  plaintiff  was  nonsuited, 
upon  which  a  judgment  was  entered,  which  was  affirmed  at  general 
term. 

FOLLETT,  C.  J*  Whether  the  public  statutes  of  the  state  shall 
be  changed  is  a  matter  of  general  interest,  and  of  common  concern, 
and  information  given  to  the  governor  for  the  purpose  of  influencing 
his  action  on  a  bill  which  has  passed  the  legislature  is  prima  facie 
privileged;  but,  if  the  communication  contains  defamatory  matter, 
and  is  unnecessarily  published  to  others,  such  publication  is  not  privi- 
leged. Coffin  v.  Coffin,  4  Mass.  I,  3  Am.  Dec.  189;  Rex  v.  Creevey, 
i  Maule  &  S.  273;  Odgers,  Sland.  &  L.  (2d  Ed.)  186;  Folk.  Starkie, 
Sland.  &  L.  202,  205 ;  Newell,  Defam.  471 ;  Townsh.  Sland.  &  L.  (4th 
Ed.)  §  217.  Had  the  pamphlet  been  given  only  to  the  executive,  we 
should  have  no  difficulty  in  sustaining  the  judgment,  on  the  ground 
that  there  was  no  evidence  of  malice,  without  proof  of  which  an  ac- 
tion cannot  be  sustained  for  such  a  publication.  But  one  witness 
testified  that  he  saw  the  defendant  give  copies  of  the  pamphlet  to  per- 
sons in  the  executive  chamber,  who  did  not  appear  to  have  any  con- 
nection with  the  hearing,  which  was  then  being  held;  and,  though 
he  was  strongly  contradicted  by  persons  who  had  every  facility  for 
observing  what  occurred,  yet  whether  the  defendant  did  distribute  the 
pamphlet,  as  testified  by  this  witness,  was  a  question  of  fact,  and  the 
court  erred  in  not  submitting  it  to  the  jury  with  appropriate  instruc- 
tions. For  this  error  the  judgment  must  be  reversed,  and  a  new  trial 
granted,  with  costs  to  abide  the  event.  All  concur. 

Judgment  reversed. 

(See  also  Proctor  v.  Webster,  16  Q.  B.  Div.  112 ;  Jenoure  v.  Delmege  [1891J 
App.  Gas.  73;  White  v.  Nicholls,  3  How.  266,  11  L.  Ed.  591;  Gray  v.  Pent- 
land,  2  Serg.  &  R.  23 ;  Id.,  4  Serg.  &  R.  420 ;  Larkin  v.  Noonan,  19  Wis.  82.) 


2.  Absolute  privilege. 

(123  N.  Y.  420,  25  N.  E.  1048,  11  L.  R.  A.  753.) 

MOORE  v.  MANUFACTURERS'  NAT.  BANK  et  al.  (In  part). 

(Court  of  Appeals  of  New  York.    December  2,  1890.) 

1.  LIBEL  AND  SLANDER— ABSOLUTE  PRIVILEGE— JUDICIAL  PROCEEDINGS. 

Defamatory  statements  made  in  the  course  of  judicial  proceedings  are 
absolutely  privileged.  However  malicious  the  intent,  or  however  false 
the  charge  may  have  been,  the  law,  on  grounds  of  public  policy  and  to 
secure  the  administration  of  justice,  denies  to  the  defamed  party  any 
remedy  through  an  action  for  libel  or  slander,  as,  e.  g.,  where  slanderous 


376  LAW  OF  TORTS. 

statements  are  made  by  parties,  counsel,  or  witnesses,  or  llbelous  charges 
are  contained  in  pleadings,  affidavits,  and  other  papers  used  in  the  action. 
This  privilege,  however,  does  not  extend  to  such  matters  as  are  irrelevant 
to  the  litigation. 

2.  SAME. 

A  bank  sued  the  sureties  on  the  bond  of  its  cashier  for  a  misappropria- 
tion of  its  funds  by  the  cashier,  and  served  a  bill  of  particulars  of  the  de- 
falcation on  defendants'  attorney  in  that  action,  which  charged  the  funds 
to  have  been  misappropriated  "by  collusion  with  the  teller."  The  bank 
also  gave  to  a  representative  of  the  defendants,  at  his  request,  a  similar 
statement  of  the  defalcation.  Held,  that  the  statements  in  respect  to 
the  teller  were  not  privileged,  and  were  prima  facie  a  libel  upon  him,  for 
which  he  could  maintain  an  action. 

Appeal  from  Supreme  Court,  General  Term,  Third  Department. 

Action  by  Amasa  R.  Moore  against  the  Manufacturers'  National 
Bank  of  Troy,  and  Gleason,  its  cashier.  A  verdict  for  $200  damages 
was  returned.  On  appeal  by  plaintiff  the  judgment  entered  on  such 
verdict  was  affirmed  by  the  general  term  (4  N.  Y.  Supp.  378),  and 
plaintiff  again  appeals. 

ANDREWS,  J.  This  is  an  action  for  libel.  On  the  trial  the  plain- 
tiff recovered  a  small  verdict.  He  appealed  to  the  general  term  from 
the  judgment  in  his  own  favor,  on  the  ground  that  the  trial  judge 
admitted  improper  evidence  offered  by  the  defendants,  and  also  that 
he  erroneously  submitted  to  the  jury  the  question  whether  certain 
facts  alleged  in  the  answer  of  the  defendants,  in  mitigation  'of  dam- 
ages, existed,  although  there  was  an  absence  of  any  proof,  to  sustain 
such  allegations.  It  is  claimed  that  by  reason  of  these  errors  the 
plaintiff  was  prejudiced  in  respect  to  the  award  of  damages.  There  is, 
we  think,  no  doubt  that  errors  were  committed  by  the  trial  judge  in 
the  respects  mentioned.  The  plaintiff  is  therefore  entitled  to  a  new 
trial  unless  the  defendant  is  right  in  his  contention  that  the  alleged 
libel  was  a  privileged  publication,  and  therefore  no  recovery  what- 
ever was  justified.  It  will  be  sufficient  to  state  very  briefly  the  facts 
upon  which  the  action  is  based,  in  order  to  present  the  question  to 
be  determined.  In  1883  the  Manufacturers'  National  Bank  of  Troy, 
claiming  that  its  cashier  had  misappropriated  and  embezzled  the  prop- 
erty and  funds  of  the  institution,  brought  an  action  on  the  cashier's 
bond  against  the  Surviving  surety  and  the  representatives  of  a  de- 
ceased surety  to  recover  the  amount  of  the  alleged  defalcation.  The 
agent  of  some  of  the  defendants  in  the  action  thereupon  applied  in 
writing  to  the  attorneys  of  the  bank  for  a  statement  of  the  claim. 
This  was  furnished,  but  not  in  detail,  and  the  agent  of  the  sureties, 
desiring  fuller  information,  called  at  the  banking-house  of  the  bank, 
and  there  had  an  interview  with  the  cashier,  and  requested  him  to 
furnish  as  particular  and  complete  an  account  as  he  could  "so  that  we 
could  see  how  we  stood."  In  compliance  with  the  request,  the  bank, 


SLANDER  AND  LIBEL,.  377 

by  its  cashier,  prepared  and  delivered  to  the  agent  of  the  sureties  a 
paper  indorsed,  "A  partial  statement  in  detail  of  the  defalcations  of 
A.  B.,  late  cashier  of  the  Manufacturers'  National  Bank  of  Troy," 
which  contained  an  itemized  account,  with  dates  and  amounts  con- 
stituting the  claim.  The  account  comprised  a  statement  of  alleged 
false  charges  made  by  the  cashier  in  the  accounts  of  depositors,  items 
for  drafts  and  securities  of  the  bank  abstracted,  and,  in  addition, 
items  amounting  in  the  aggregate  to  $16,621.95,  entered  in  the  ac- 
count as  "cash  items  drawn  from  the  bank  by  collusion  with  the 
teller,  without  the  knowledge  or  authority  of  the  officers  of  the  bank." 
The  alleged  libel  for  which  this  action  is  brought  is  founded  on  the 
words  "by  collusion  with  the  teller,"  contained  in  this  statement,  and 
also  on  a  repetition  of  the  same  words  in  a  similar  account  subse- 
quently furnished  as  a  bill  of  particulars  in  the  action,  on  the  demand 
of  the  attorneys  for  the  sureties.  The  plaintiff  in  the  present  action 
was  the  teller  of  the  bank  during  the  period  of  the  alleged  defalca- 
tions by  the  cashier,  and  no  question  is  made  but  that  the  words 
"by  collusion  with  the  teller,"  contained  in  the  statement  delivered 
to  the  agent  of  the  sureties,  and  in  the  bill  of  particulars,  referred 
to  him.  It  cannot  admit  of  question  that  the  publication  was  libelous, 
and  sustained  the  action,  unless  the  publication  was,  as  claimed,  priv- 
ileged. It  charged  the  plaintiff  with  complicity  in  the  crime  of  em- 
bezzlement committed  by  the  cashier.  The  words  are  susceptible 
of  no  other  interpretation. 

There  are  many  examples  in  the  books  of  communications  held 
to  be  privileged,  where  the  same  words,  if  used  other  than  on  a  lawful 
occasion,  would  be  libelous,  but  which,  by  reason  of  the  occasion 
when  they  were  published  or  spoken,  will  not  sustain  an  action,  al- 
though proved  to  be  untrue,  unless  proved  to  have  been  spoken 
maliciously.  The  cases  of  charges  made  in  giving  the  character 
of  a  servant,  or  in  answering  an  authorized  inquiry  concerning  the 
solvency  of  a  tradesman,  or  where  the  communication  was  confiden- 
tial between  parties  having  a  common  interest  in  the  subject  to  which 
it  relates,  are  illustrations.  Bronson,  C.  J.,  Washburn  v.  Cooke,  3 
Denio,  112.  In  these  and  like  cases  the  privilege  is  not  absolute,  but 
conditional ;  that  is  to  say,  the  occasion  being  lawful,  the  communica- 
tion is  prima  facie  privileged,  and  rebuts  the  inference  of  malice  which 
would  otherwise  arise,  and  imposes  on  the  plaintiff  who  prosecutes 
an  action  of  slander  or  libel  the  burden  of  proving  that  the  defendant 
was  moved  by  actual  malicious  intent  in  making  the  communication, 
and,  failing  in  that,  he  fails  in  the  action. 

There  is  another  class  of  privileged  communications  where  the 
privilege  is  absolute.  They  are  defined  in  Hastings  v.  Lusk,  22  Wend. 
410,  34  Am.  Dec.  .330.  In  this  class  are  included  slanderous  state- 
ments made  by  parties,  counsel,  or  witnesses  in  the  course  of  judicial 
proceedings,  and  also  libelous  charges  in  pleadings,  affidavits,  or  other 


378  LAW  OF  TORTS. 

papers  used  in  the  course  of  the  prosecution  or  defense  of  an  action. 
In  questions  falling  within  the  absolute  privilege  the  question  of 
malice  has  no  place.  However  malicious  the  intent,  or  however  false 
the  charge  may  have  been,  the  law,  from  considerations  of  public 
policy,  and  to  secure  the  unembarrassed  and  efficient  administration 
of  justice,  denies  to  the  defamed  party  any  remedy  through  an  action 
for  libel  or  slander.  This  privilege,  however,  is  not  a  license  which 
protects  every  slanderous  publication  or  statement  made  in  the  course 
of  judicial  proceedings.  It  extends  only  to  such  matters  as  are  rele- 
vant or  material  to  the  litigation,  or,  at  least,  it  does  not  protect 
slanderous  publications  plainly  irrelevant  and  impertinent,  voluntarily 
made,  and  which  the  party  making  them  could  not  reasonably  have 
supposed  to  be  relevant.  Ring  v.  Wheeler,  7  Cow.  725;  Hastings 
v.  Lusk,  22  Wend.  410,  34  Am.  Dec.  330;  Gilbert  v.  People,  I  Denio, 
41,  43  Am.  Dec.  646;  Grover,  J.,  Marsh  v.  Ellsworth,  50  N.  Y.  309; 
Rice  v.  Coolidge,  121  Mass.  393,  23  Am.  Rep.  279;  McLaughlin  v. 
Cowley,  127  Mass.  316.  Where  there  are  several  distinct  charges,  some 
privileged  and  some  not  privileged,  those  not  privileged  are  not  jus- 
tified by  the  charges  that  are  privileged.  Clarke  v.  Roe,  4  Ir.  C.  L.  1 ; 
Tuson  v.  Evans,  12  Adol.  &  El.  733 ;  Warren  v.  Warren,  I  Cromp. 
M.  &  R.  250.  The  policy  upon  which  the  doctrine  of  privilege  rests 
does  not  call  for  an  extension  of  the  privilege  to  such  cases.  The  public 
interests  are  sufficiently  protected  when  the  privilege  is  limited  to  com- 
munications which  fairly  ought  to  have  been  made,  or,  in  case  of  judi- 
cial proceedings,  to  matters  not  wholly  outside  of  the  cause.  But  no 
strained  or  close  construction  will  be  indulged  to  exempt  a  case  from 
the  protection  of  privilege. 

Both  occasions  on  which  the  publication  in  this  case  was  made 
were  privileged;  that  is  to  say,  it  was  the  right  of  the  sureties 
to  receive,  and  it  was  the  reasonable  duty  of  the  defendants  to 
give,  all  proper  information  bearing  upon  the  claim  made  by  the 
bank  against  the  sureties. '  The  occasion,  therefore,  justified  the 
bank  in  disclosing  the  facts  relating  to  the  alleged  defalcation  of 
the  cashier,  and  even  if  the  bank  was  misinformed,  and  there  had  been 
no  defalcation  in  fact,  such  information  was  privileged,  and  the  cashier 
could  have  maintained  no  action,  unless  perhaps  in  respect  to  the  first 
publication  on  proof  of  actual  malice.  But  the  incorporation  into  the 
publication  of  the  statement  that  the  teller  acted  in  collusion  with 
the  cashier  was,  so  far  as  appears,  wholly  irrelevant,  and  unnecessary. 
The  teller  was  not  a  party  to  the  bond  or  to  the  suit.  There  was  no 
issue  which  called  for  an  investigation  of  the  teller's  conduct.  The 
information  that  the  teller  had  been  in  complicity  with  the  cashier 
was  not  in  response  to  any  inquiry  made  by  the  defendant.  The  in- 
formation did  not  on  its  face  explain,  or  tend  to  explain,  or  estab- 
lish any  fact  relevant  to  the  defendant's  case  against  the  sureties,  nor 
can  it  be  seen  how  knowledge  of  the  fact  communicated  would  be 


SLANDER  AND   LIBEL.  371) 

•of  advantage  to  the  sureties.  If,  upon  any  ground,  the  information 
was  relevant  or  material,  as  no  such  ground  appears  on  the  face  of 
the  publication,  we  are  not  at  liberty  to  assume  its  existence.  The 
burden  of  showing  its  relevancy,  under  the  circumstances,  was  upon 
the  defendants.  It  is  not  impossible  that  a  narration  on  the  trial  of 
the  facts  as  to  the  defalcation  of  the  cashier  might  incidentally  involve 
a  disclosure  of  the  acts  of  the  teller,  but  this  did  not,  we  think,  justify 
the  defendants  in  the  publication,  in  advance  of  the  defamatory  matter 
as  to  the  teller,  not,  so  far  as  appears,  having  any  relevancy  to  the 
liability  of  the  sureties  on  their  bond.  Prima  facie  the  publication 
was  not  privileged.  The  ordinary  consequence  follows  that  /malice 
is  presumed  from  the  defamatory  nature  of  the  publication,  and  the 
defendants  must  rely  for  their  defense  upon  a  justification  (which  was 
not  attempted)  or  upon  proof  in  mitigation  of  damages.  The  cases  of 
Klinck  v.  Colby,  46  N.  Y.  427,  7  Am.  Rep.  360,  and  Marsh  v.  Ells- 
worth, 50  N.  Y.  309,  are  not  inconsistent  with  the  conclusion  we  have 
reached.  Both  cases  recognize  the  rule  that  the  question  of  privilege 
depends  upon  there  being  a  lawful  occasion  for  speaking  and  the  use 
of  words  pertinent  to  that  occasion.  The  conclusion  reached  re- 
quires a  reversal  of  the  judgments  at  the  circuit  and  general  term, 
and  a  direction  for  a  new  trial.  Judgments  reversed. 

RUGER,  C.  J.,  and  FINCH,  PECKHAM,  and  GRAY,  JJ.,  con- 
curred. EARL  and  O'BRIEN,  JJ.,  dissented. 

(For  other  valuable  cases  as  to  "judicial  proceedings,"  see  Wright  v.  Loth- 
rop,  149  Mass.  385,  21  N.  E.  963 ;  Blakeslee  v.  Carroll,  64  Conn.  223,  29  Atl. 
473,  25  L.  R.  A.  106 ;  Cooley  v.  Galyon,  109  Tenn.  1,  70  S.  W.  607,  60  L.  R.  A. 
139;  Clemmons  v.  Danforth,  67  Vt.  617,  32  Atl.  626,  48  Am.  St  Rep.  836; 
McGehee  v.  Insurance  Co.,  112  Fed.  853,  50  C.  C.  A.  551 ;  Jones  v.  Brownlee, 
161  Mo.  258,  61  S.  W.  795,  53  L.  R.  A.  445;  Hollis  v.  Meux,  69  Cal.  625,  11 
Pac.  248,  58  Am.  Rep.  574 ;  Barnes  v.  McCrate,  32  Me.  442 ;  Liles  v.  Gaster, 
42  Ohio  St.  631 ;  Dawkins  v.  Lord  Rokeby,  L.  R.  7  H.  L.  744.  In  England  the 
privilege  is  broader  than  In  America,  and  applies  to  defamatory  matter  which 
is  not  relevant  to  the  issue.  Munster  v.  Lamb,  11  Q.  B.  D.  588. 

The  absolute  privilege  also  applies  to  "legislative  proceedings,"  and  embraces 
words  spoken  by  members  of  parliament,  or  of  congress,  or  of  the  state  legisla- 
tures, in  the  discharge  of  their  official  duties  in  the  house,  reports  made  by 
legislative  committees,  etc.  Hastings  v.  Lusk,  22  Wend.  410,  417,  34  Am.  Dec, 
530 ;  Coffin  v.  Coffin,  4  Mass.  1,  3  Am.  Dec.  189.) 


380  LAW  OF  TORTS. 

VII.    CONSTRUCTION    OF   WORDS— COLLOQUIUM— IN- 
NUENDO. 

(59  Pa.  488.) 
STITZELL  v.  REYNOLDS  et  ux.  (in  part). 

(Supreme  Court  of  Pennsylvania.    January  5,  1869.) 

L  SLANDER— WORDS  ACTIONABLE. 

Words  spoken  of  plaintiff,  that  she  had  her  hogs  in  another  person's 
corn,  and  carried  corn  away,  impute  no  indictable  offense,  and  without 
special  damage  are  not  actionable. 

2.  SAME— PLEADING. 

To  show  that  such  words  were  meant  to  impute  larceny,  extrinsic  cir- 
cumstances must  be  alleged  by  proper  averments,  with  a  colloquium.  Dis- 
tinctions stated  and  explained  between  "averment,"  "colloquium,"  and 
"innuendo."  When  the  use  of  these  in  pleading  is  necessary  in  actions 
for  libel  or  slander. 

Error  to  the  Court  of  Common  Pleas  of  Fayette  County ;  of  Octo- 
ber and  November  term,  1868,  No.  41. 

This  was  an  action  of  slander  by  Patrick  Reynolds  and  Elizabeth, 
his  wife,  against  Frederick  Stitzell,  commenced  August  23,  1866. 

The  first  count  of  the  declaration  charged  that  the  defendant  ut- 
tered the  following  defamatory  words,  to  wit:  "That  he  (the  said 
Frederick  Stitzell  meaning)  understood  that  Elizabeth  Reynolds  (the 
plaintiff  meaning)  had  her  hogs  in  his  (the  said  George  Dawson's 
meaning)  corn,  and  that  she  (the  said  Elizabeth  Reynolds  meaning) 
had  carried  away  corn,  thereby  meaning  and  intending  the  said  Eliza- 
beth Reynolds  to  have  been  guilty  of  larceny." 

The  court,  denying  a  motion  by  the  defendant  in  arrest  of  judg- 
ment on  the  ground  that  the  words  were  not  actionable,  entered 
judgment  for  the  plaintiff  upon  a  verdict  found  by  the  jury  for  $320. 
The  defendant  took  out  a  writ  of  error. 

SHARSWOOD,  J.  The  words  set  out  in  the  first  count  of  the 
declaration  impute  no  indictable  offense  of  themselves,  and,  without 
special  damage,  are  therefore  not  actionable.  Words,  indeed,  are  no 
longer  construed  in  mitiori  sensu,  but  if  in  their  plain  popular  mean- 
ing they  convey  a  criminal  charge  it  is  now  sufficient.  "Elizabeth 
Reynolds  had  her  hogs  in  your  corn  and  carried  corn  away,"  impute, 
in  their  worst  sense,  standing  by  themselves,  a  mere  trespass.  To 
show  that  they  meant  to  impute  larceny,  there  must  be  a  reference 
to  some  extrinsic  circumstances,  and  these  extrinsic  circumstances 
must  be  spread  on  the  record  by  proper  averments,  with  a  colloquium. 
"A  word,"  said  Gibson,  C.  J.,  in  Deford  v.  Miller,  3  Pen.  &  W.  105, 
"which  does  not  necessarily  import  criminality  is  in  pleading  rendered 
actionable  only  by  reference  to  extrinsic  facts  which  show  it  to  have 


SLANDER  AXD  LIBEL.  381 

been  used  in  an  obnoxious  sense.  Thus  the  word  'forsworn'  becomes 
actionable  when  shown  to  have  been  predicated  of  one  who  had  given 
testimony  under  the  sanction  of  a  judicial  oath ;  and  hence  the  neces- 
sity of  a  colloquium  about  the  time,  place,  and  circumstances." 

Perhaps  the  best  illustration  of  the  rule  of  pleading  in  these  cases 
is  to  be  found  in  Barham's  Case,  4  Rep.  20.  The  words,  as  laid,  were, 
"Barham  burnt  my  barn  ;"  (innuendo) — a  barn  with  corn.  The  action 
was  held  not  to  lie,  because  burning  a  barn,  unless  it  had  corn  in  it, 
was  not  felony;  but,  remarked  De  Gray,  C.  J.,  on  this  case  in  Rex 
v.  Home,  Cowp.  684:  "If  in  the  introduction  it  had  been  averred 
that  the  defendant  had  a  barn  full  of  corn,  and  that  in  a  discussion 
about  that  barn  the  defendant  had  spoken  the  words  charged,  an 
innuendo  of  its  being  the  barn  full  of  corn  would  have  been  good." 
Here  the  extrinsic  fact  that  the  defendant  had  a  barn  full  of  corn  is 
the  averment.  The  allegation  that  the  words  were  uttered  in  a  con- 
versation in  reference  to  that  barn  is  the  colloquium,  and  the  explana- 
tion given  to  the  words  thus  spoken  is  the  innuendo.  Van  Vechten 
v.  Hopkins,  5  Johns.  221,  4  Am.  Dec.  339. 

"Nothing  can  be  more  clear,"  said  Lord  Ellenborough  in  Hawkes 
v.  Hawkey,  8  East,  431,  "than  the  rule  laid  down  in  the  books,  and  that 
which  has  been  constantly  adopted  in  practice,  not  only  when  the 
words  spoken  do  not  in  themselves  naturally  convey  the  meaning 
imputed  by  the  innuendo,  but  also  where  they  are  ambiguous  and 
equivocal,  and  require  explanation  by  reference  to  some  extrinsic 
matter  to  make  them  actionable ;  it  must  not  only  be  predicated  that 
such  matter  existed,  but  also  that  the  words  were  spoken  of  and 
concerning  that  matter."  An  innuendo,  as  has  been  often  decided, 
cannot  add  to  or  enlarge,  extend,  or  change  the  sense  of  the  previous 
words,  and  the  matter  to  which  it  refers  must  always  appear  from  the 
antecedent  parts  of  the  declaration.  Thomas  v.  Croswell,  7  Johns. 
271,  5  Am.  Dec.  269.  It  cannot  supply  the  place  of  a  colloquium. 
Lindsey  v.  Smith,  7  Johns.  359.  "It  would  not  be  easy,"  says  Mr. 
Starkie,  "or  perhaps  possible,  to  point  out  a  more  clear  and  con- 
venient process  for  technically  stating  a  case  upon  the  record  than 
this,  which  has  with  great  wisdom  been  adopted  by  the  law  from 
very  early  times.  It  combines  simplicity  with  precision,  separating 
the  law  from  the  facts,  and  exhibiting  a  statement  of  the  cause  of 
action  on  the  face  of  the  record,  plain  and  distinct  in  all  its  parts." 
i  Starkie  on  Slander,  431. 

The  decisions  of  this  court  have  heretofore  been  entirely  in  accord 
with  these  principles.  Shultz  v.  Chambers,  8  Watts,  300 ;  Thompson 
v.  Lusk,  2  Watts,  17,  26  Am.  Dec.  91.  Where  the  words  themselves 
may  be  taken  in  a  double  sense,  the  innuendo  is  used  in  order  to  at- 
tach such  meaning  to  them  as  the  plaintiff  claims  was  intended,  or 
may  think  necessary  to  fender  the  same  actionable.  But  whenever 
in  such  case  the  actionable  quality  of  the  words  arises  from  circum- 


382  LAW  OF  TORTS. 

stances  extrinsic  of  them,  averments  are  essential  to  show  of  record 
that  such  circumstances  existed,  and  connect  the  words  used  with 
these  circumstances.  Gosling  v.  Morgan,  32  Pa.  273.  And  in  Luke- 
heart  v.  Byerly,  53  Pa.  418,  it  was  expressly  decided  that  words  laid 
in  a  count  for  slander,  which  are  not  actionable  in  themselves  and 
have  no  colloquium  to  connect  them  with  extrinsic  circumstances, 
are  not  helped  by  the  innuendo  of  larceny. 

The  only  difficulty  has  been  in  applying  the  rule  in  determining 
when  the  words  used  do,  in  their  popular  sense,  convey  the  imputa- 
tion of  a  criminal  charg'e,  either  singly  or  in  one  of  two  senses ;  for 
then  an  innuendo  is  all  that  is  necessary  to  fix  the  meaning,  or,  if  not 
absolutely  necessary,  may  nevertheless  be  used  without  danger. 

In  Bricker  v.  Potts,  12  Pa.  200,  it  was  held  that  words  which  in 
their  ordinary  import  imply  a  false  oath  in  a  judicial  proceeding  are 
actionable,  although  in  fact  there  was  no  such  proceeding,  and  there- 
fore no  colloquium  is  necessary.  Dottarer  v.  Bushey,  16  Pa.  204, 
belongs  to  the  same  class.  "If  the  words  charged  in  a  narr.  for 
slander  do  not  imply  a  criminal  charge  subject  to  infamous  punish- 
ment, neither  an  innuendo  nor  a  verdict  will  help  them."  Vanderlip 
v.  Roe,  23  Pa.  82.  If  the  slanderous  words  alleged  to  have  been 
spoken  contain  a  charge  of  fornication,  no  colloquium  is  necessary. 
"If  the  words  laid  do  not  of  themselves  involve  the  charge,  or  express 
the  meaning  repeated  in  the  innuendo,  then  the  colloquium  is  the 
place  to  insert  the  other  facts,  which  give  the  color  to  the  words  laid, 
and  without  it  there  would  be  no  cause  of  action." 

These  are  decisions  that  I  have  found  bearing  on  this  question, 
and  I  think  it  will  be  admitted  that  they  have  steered  skillfully  and 
successfully  through  these  narrows  of  pleading.  Now,  in  the  words 
as  laid  in  the  first  count  of  the  declaration  before  us,  there  was  no 
fault  or  blame  or  concealment  alleged — merely  carrying  away,  with- 
out even  the  ingredient  invito  domino.  In  the  popular  sense,  and 
certainly  in  the  legal  sense,  there  was  nothing  imputed  by  the  words 
themselves  but  a  trespass,  if  even  that. 

It  follows  that  the  first  count  of  the  declaration  was  bad.  Judgment 
reversed. 

(Other  interesting  cases  are  Harrison  v.  Manship,  120  Ind.  43,  22  N.  E.  81 
[here  the  words  were,  "He  took  and  drove  off  rny  ducks  and  sold  them"] ; 
Carter  v.  Andrews,  16  Pick.  1  ["the  library  has  been  plundered  by  C.,"  the 
plaintiff] ;  Snell  v.  Snow,  13  Mete.  278,  46  Am.  Dec.  730  [plaintiff  was  called  a 
"bad  girl"] ;  Riddell  v.  Thayer,  127  Mass.  487 ;  Brettun  v.  Anthony,  103  Mass. 
37;  Henmens  v.  Nelson,  138  N.  Y.  517,  34  N.  E.  342,  20  L.  R.  A.  440  ["she 
entertained  gentlemen  company  at  all  hours  of  the  night"] ;  Kinney  v.  Nash, 
3  N.  Y.  177;  Sturtevant  v.  Root,  27  N.  H.  69;  Patterson  v.  Wilkinson,  55 
Me.  42,  92  Am.  Dec.  568;  McLaughlin  v.  Fisher,  136  111.  Ill,  24  N.  E.  60; 
Smedley  v.  Soule,  125  Mich.  192,  84  N.  W.  63 ;  State  v.  Elliot,  10  Kan.  App. 
69,  61  Pac.  981.  "The  purpose  of  an  innuendo,"  it  is  said,  "is  to  define  the 
defamatory  meaning  which  the  plaintiff  attaches  to  the  words,  to  show  how 
they  come  to  have  that  meaning,  and  how  they  relate  to  the  plaintiff.  But  it 


SLANDER   AND  LIBEL.  383 

cannot  be  used  to  Introduce  new  matter,  or  to  enlarge  the  natural  meaning 
of  the  words,  and  thereby  give  to  the  language  a  construction  which  it  will 
not  bear."  Naulty  v.  Bulletin  Co.,  206  Pa.  128,  55  Atl.  862;  Mattice  v.  Wil- 
cox,  147  N.  Y.  624,  42  N.  E.  270;  Benton  v.  State,  59  N.  J.  Law,  551,  36  Atl. 
1041 ;  Kilgour  v.  Eve.  Star  Newspaper  Co.,  96  Md.  16,  53  Atl.  716 ;  Williams 
v.  Fuller  [Neb.]  94  N.  W.  118 ;  State  v.  Shipprnan,  83  Minn.  441,  86  N.  W.  431. 

By  statute,  in  New  York  and  a  number  of  the  states,  when  defamatory 
matter  is  ambiguous  as  to  who  is  defamed  by  it,  it  is  not  necessary  to  allege 
in  the  complaint  any  extrinsic  fact,  to  show  the  application  of  such  matter  to 
the  plaintiff,  but  the  plaintiff  may  state  generally  that  "it  was  published  or 
spoken  concerning  him ;  and  if  that  allegation  be  controverted,  the  plaintiff 
must  establish  it  on  the  trial."  N.  Y.  Code  Civ.  Proc.  §  535;  Corr  v.  Sun 
Printing  Ass'n,  177  N.  Y.  131,  69  N.  E.  288 ;  Petsch  v.  St.  Paul  Dispatch  Print- 
ing Co.,  40  Minn.  291,  41  N.  W.  1034 ;  18  Am.  &  Eng.  Encyc.  of  Law  [2d  Ed.] 
994.  By  the  common-law  rule,  the  extrinsic  facts  must  be  alleged.  Miller 
v.  Maxwell,  16  Wend.  9;  Croswell  v.  Weed,  25  Wend.  621;  Hanna  v.  Singer, 
97  Me.  128,  53  Atl.  991.) 


VIII.  SLANDER  OF  TITLE ;   SLANDER  OF  PROPERTY. 

(5  N.  Y.  14.) 

KENDALL  v.  STONE  (in  part). 
(Court  of  Appeals  of  New  York.    July,  1851.) 

1.  SLANDER  OF  TITLE — PECUNIARY  INJURY. 

To  maintain  an  action  for  slander  of  title,  the  words  must  not  only  be 
false,  but  must  be  uttered  maliciously,  and  be  followed  as  a  natural  and 
legal  consequence  by  pecuniary  damage  to  plaintiff,  which  must  be  spe- 
cially alleged  and  proved. 

2.  SAME. 

By  statements  made  by  defendant  as  to  plaintiff's  title  to  a  lot  of  land, 
a  third  person,  who  had  entered  into  a  written  contract  with  plaintiff  for 
the  purchase  of  it,  was  induced  to  desire  to  withdraw  from  his  agreement, 
to  which  plaintiff  assented,  and  the  contract  was  rescinded.  Held,  that 
plaintiff's  loss  of  the  sale  was  not  the  legal  consequence  of  the  words 
spoken  by  defendant,  and  plaintiff  could  not  recover  damages  from  him 
therefor. 

Appeal  from  Superior  Court  of  the  City  of  New  York,  General 
Term. 

Action  for  slander  of  title.  Defendant  appealed  from  a  judgment 
for  plaintiff,  and  from  an  order  denying  a  motion  for  a  new  trial  made 
on  a  bill  of  exceptions. 

GARDINER,  J.  The  cause  of  action  in  this  case  is  denominated 
"slander  of  title"  by  a  figure  of  speech,  in  which  the  title  to  land  is 
personified,  and  made  subject  to  many  of  the  rules  applicable  to  per- 
sonal slander,  when  the  words  in  themselves  are  not  actionable.  To 


384  LAW  OF  TORTS. 

maintain  the  action,  the  words  must  not  only  be  false,  but  they  must 
be  uttered  maliciously,  (Smith  v.  Spooner,  3  Taunt.  254;  Pater  v. 
Baker,  3  Man.  G.  &  S.  868,)  and  be  followed,  as  a  natural  and  legal 
consequence,  by  a  pecuniary  damage  to  the  plaintiff,  which  must  be 
specially  alleged  in  the  declaration,  and  substantially  proved  on  the 
trial,  (Beach  v.  Ranney,  2  Hill,  314;  Grain  v.  Petrie,  6  Hill,  524,  41 
Am.  Dec.  765.)  The  declaration  in  this  case  alleges,  in  the  only  count 
to  which  the  evidence  applies,  that  by  means  of  the  grievances  divers 
good  citizens,  and  especially  one  Asa  H.  Wheeler,  were  deterred  from 
purchasing  the  lands  in  question,  and  the  plaintiff  was  prevented  from 
disposing  of  the  same,  and  thereby  deprived  of  the  advantages  to  be 
derived  from  the  sale  thereof,  etc.  The  loss  of  a  sale  to  Wheeler  is 
therefore  the  only  special  damage  incurred  by  the  plaintiff  alleged 
in  the  declaration  and  established  by  the  evidence.  The  superior 
court  places  the  recovery  upon  this  ground,  and  it  is  obviously  the 
only  one  on  which  it  can  be  sustained.  Before  the  words  were  spoken 
the  plaintiff  and  Wheeler  had  entered  into  an  agreement  in  writing 
for  the  sale  of  the  lot  in  question,  which  was  executed  by  the  vendor, 
and  accepted  by  the  vendee,  who  upon  its  delivery  paid  $250  towards 
the  purchase  money.  The  agreement  was  obligatory  upon  both  par- 
ties. Either  could  have  enforced  a  specific  performance  in  equity, 
and  thereby  attained  the  precise  result  contemplated  by  the  contract. 
Under  these  circumstances,  the  representations  charged  were  made 
by  the  defendant.  The  effect  of  them  was  not  to  prevent  a  sale  of  the 
land,  for  that  had  been  secured  by  the  existing  contract.  Wheeler 
was  induced  by  the  misrepresentation  to  desire  a  relinquishment  of 
the  agreement.  This  was  assented  to  by  the  plaintiff,  the  agreement 
was  rescinded,  and  the  note  of  the  vendor  received  for  the  amount  of 
the  money  advanced  by  the  purchaser.  This  suit  was  then  instituted, 
and  special  damages  claimed  of  the  defendant,  substantially  for  the 
non-fulfillment  of  a  contract  which  had  been  surrendered  by  the  con- 
sent and  agreement  of  the  plaintiff.  This  is  a  brief  statement  of  the 
proceeding. 

The  court  charged  "that  it  was  pretty  manifest,  from  the  testimony 
of  Wheeler,  that  the  plaintiff  had  sustained  damages ;  that  the  former 
would  have  taken  the  title,  if  it  had  not  been  for  the  words  spoken 
by  the  defendant."  To  this  there  was  an  exception,  and  the  question 
is  whether  the  special  damage  alleged  by  the  plaintiff,  which  is  the 
gist  of  the  action,  was  established  by  this  evidence. 

There  is  no  case  that  holds  that,  where  the  special  damage  consists 
in  the  violation  of  a  contract,  the  plaintiff  may  discharge  the  obliga- 
tion, and  then  recover  damages  in  an  action  of  tort  for  its  non- 
performance.  The  right  claimed  to  be  affected  by  the  slander  orig- 
inated in  and  subsisted  by  virtue  of  the  contract.  When  that  was 
discharged,  it  fell  with  it.  The  vendor  and  vendee  elected  to  consider 
the  agreement  as  null  from  the  beginning.  When  the  suit  was  insti- 


SLANDER  AND  LIBBL.  385 

tuted,  therefore,  there  could  be  no  injury,  for  there  was  no  right 
to  be  affected.  Yet,  under  these  circumstances,  the  plaintiff  has  been 
permitted  to  recover  a  thousand  dollars  by  way  of  damages,  because 
Wheeler  wished  to  be  discharged  from  a  purchase  of  a  lot,  the  stipu- 
lated value  of  which  was  $900,  and  was  discharged  by  the  vendor  ac- 
cordingly. In  Bird  v.  Randall,  3  Burrows,  1345,  the  action  was  for 
enticing  a  servant  from  the  employment  of  the  plaintiff.  The  servant 
was  bound  to  the  master  for  five  years,  under  a  penalty  of  £100. 
The  plaintiff  sued  the  servant,  and  recovered  judgment,  which  was 
paid  after  the  suit  against  the  defendant  was  at  issue  and  noticed  for 
trial.  It  was  held  that  the  defendant  was  discharged.  The  recovery 
against  the  servant  by  him,  and  payment,  put  an  end  to  the  contract, 
as  Lord  Mansfield  remarks,  and  in  his  reasoning  he  puts  a  satisfac- 
tion upon  the  same  ground  as  a  release  or  discharge  of  the  contract. 
The  judgment  must  be  reversed. 

Judgment  reversed,  and  new  trial  ordered. 

(See  also  Like  v.  McKinstry,  3  Abb.  Dec.  62;  Andrew  v.  Deshler,  45  N.  J. 
Law.  167 ;  Wren  v.  Weild,  L.  R.  4  Q.  B.  730.  In  Burkett  v.  Griffith,  90  Cal.  532, 
27  Pac.  527,  13  L.  R.  A.  707,  25  Am.  St.  Rep.  151,  the  nature  of  this  action  Is 
thus  explained :  "Although  the  term  'slander'  is  more  appropriate  to  the  def- 
amation of  the  character  of  an  individual,  yet  the  term  'slander  of  title'  has 
by  use  become  a  recognized  phrase  of  the  law ;  and  an  action  therefore  is  per- 
mitted against  one  who  falsely  and  maliciously  disparages  the  title  of  another 
to  property,  whether  real  or  personal,  and  thereby  causes  him  some  special  pe- 
cuniary loss  or  damage.  In  order  to  maintain  the  action,  it  is  necessary  to 
establish  that  the  words  spoken  were  false,  and  were  maliciously  spoken  by  the 
defendant,  and  also  that  the  plaintiff  has  sustained  some  special  pecuniary 
damage  as  the  direct  and  natural  result  of  their  having  been  so  spoken."  This 
case  was  for  slander  of  title  to  realty.  Other  similar  cases  are  Malachy  v. 
Soper,  3  Bing.  N.  C.  371 ;  Linden  v.  Graham,  1  Duer,  670 ;  Cornwell  v.  Parke, 
52  Hun.  596,  5  N.  Y.  Supp.  905,  affirmed  in  123  N.  Y.  657,  25  N.  E.  955 ;  Paull 
v.  Halferty,  63  Pa.  46,  3  Am.  Rep.  518 ;  Chesebro  v.  Powers,  78  Mich.  472,  44 
N.  W.  290.  Cases  of  slander  of  title  to  personalty  are  Stevenson  v.  Love  [C.  C.] 
106  Fed.  466;  Like  v.  McKinstry,  41  Barb.  186,  3  Abb.  Dec.  62;  Andrew  v. 
Deshler,  45  N.  J.  Law,  167  [title  to  a  patent].  The  name  "slander  of  title"  ap- 
plies not  only  to  oral  statements,  but  also  to  those  made  in  writing.  Paull  v. 
Halferty,  Chesebro  v.  Powers,  Andrew  v.  Deshler,  supra.) 


(35  Minn.  471,  29  N.  W.  68,  59  Am.  Rep.  335.) 

WILSON  v.  DUBOIS. 
(Supreme  Court  of  Minnesota.    July  20,  1886.) 

1.  SLANDER  OF  PROPERTY — MALICIOUS  DISPARAGEMENT  OF  PROPERTY. 

False  and  malicious  statements  disparaging  an  article  of  property, 
when  followed,  as  a  natural,  reasonable,  and  proximate  result,  by  special 
damage  to  the  owner,  are  actionable. 

2.  SAME— SPECIAL  DAMAGE— Loss  OF  SALE. 

Special  damage  is  of  the  gist  of  the  action;    and,   where  the  special 
damage  relied  on  is  loss  of  sale  of  the  thing  disparaged,  it  is  indispensable 
CIIASE  (2o  ED.)— 25 


386  LAW  OF  TORTS. 

to  allege  and  show  loss  of  sale  to  some  particular  person,  and,  In  the  ab- 
sence of  such  allegation,  the  complaint  is  demurrable  for  failure  to  state 
a  cause  of  action. 

Appeal  from  an  Order  of  the  District  Court,  Hennepin  County, 
Sustaining  Defendant's  Demurrer  to  Plaintiff's  Complaint. 

BERRY,  J.  The  complaint  alleges  that  plaintiff,  a  horse-dealer, 
owned,  January  30,  1886,  and  still  owns,  a  race-horse,  which  then 
was  and  still  is  for  sale ;  that  on  that  day  defendant  maliciously  pub- 
lished in  a  newspaper,  (of  large  circulation,)  of  which  he  was  pro- 
prietor, a  statement  that  the  horse  was  21  years  old,  when  he  was  not 
more  than  12  years  old,  as  defendant  well  knew,  thereby  intending 
to  hinder  the  sale  of  the  horse  by  plaintiff,  to  his  pecuniary  loss  and 
damage ;  that  at  said  time  plaintiff  had  "a  chance  to  sell,  and  was 
negotiating  a  sale,"  of  said  horse  for  $1,000,  and  but  for  said  false 
publication  would  have  sold  him  for  that  sum;  and  that,  solely  be- 
cause of  said  false  publication,  "plaintiff  lost  the  chance  to  sell  said 
horse;  the  negotiations  *  *  *  were  broken  up  by  said  parties 
who  contemplated  purchasing ;  no  one  will  pay  for  it  more  than  $500 ; 
and  plaintiff  cannot  sell  his  said  horse  for  more  than  $500 ;"  and  that 
plaintiff  has  accordingly  suffered  damages  in  the  sum  of  $500. 

False  and  malicious  statements,  disparaging  an  article  of  property, 
when  followed,  as  a  natural,  reasonable,  and  proximate  result,  by 
special  damage  to  the  owner,  are  actionable.  Paull  v.  Halferty,  63 
Pa.  46,  3  Am.  Rep.  518;  Gott  v.  Pulsifer,  122  Mass.  235,  23  Am. 
Rep.  322;  Starkie,  Sland.  (Wood's  'Ed.)  212;  Manning  v.  Avery,  3 
Keb.  153;  Broom,  Comm.  (6th  Ed.)  761,  762;  Swan  v.  Tappan,  5 
Cush.  104;  Western  Co.  v.  Lawes  Co.,  L.  R.  9  Exch.  218;  Odgers, 
Sland.  §  145 ;  Townsh.  Sland.  §  204. 

Does  the  complaint  state  a  case  under  this  rule  ?  That  the  state- 
ment complained  of  was  false  and  malicious,  is  distinctly  averred. 
It  was  also  prima  facie  disparaging,  for  prima  facie,  as  a  matter  of 
common  knowledge,  a  horse  at  21  years  of  age  is  less  valuable  than 
he  is  at  12.  The  complaint  also  alleges,  in  effect,  that  the  plaintiff's 
loss  of  sale  of  his  horse  was  the  result  of  the  publication ;  and  there 
is  no  difficulty  in  conceiving  of  a  state  of  facts  showing  that  the  in- 
tending purchaser  was  influenced,  and  led  to  decline  or  refuse  to  pur- 
chase, by  the  publication  complained  of,  and  hence  no  difficulty  in 
conceiving  that  the  failure  to  sell  to  him  may  have  been  a  natural, 
reasonable,  and  proximate  consequence  of  said  publication.  But  the 
allegation  of  special  damage  is  insufficient.  The  action  is  in  the  nature 
of  one  for  slander  of  title,  (Western  C.  M.  Co.  v.  Lawes  C.  M.  Co., 
L.  R.  9  Exch.  218,)  and  hence  it  is  not  the  ordinary  action  for  slander, 
properly  so  called,  "but  an  action  on  the  case,  for  special  dam- 
ages sustained  by  reason  of  the  speaking"  complained  of.  I  Sauncl. 
2436,  note  n ;  Malachy  v.  Soper,  3  Bing.  N.  C.  371 ;  Brook  v.  Rawl, 


SLANDER   AND   LIBEL.  387 

4  Welsh.,  H.  &  G.  521.  Special  damages  are  therefore  of  the  gist 
of  the  action.  Wetherell  v.  Clerkson,  12  Mod.  597.  Without  them 
the  action  cannot  be  maintained,  and  therefore  a  complaint  failing 
to  allege  them  failed  to  allege  a  cause  of  action.  Starkie,  Sland.  212 ; 
Wetherell  v.  Clerkson,  supra ;  Cook  v.  Cook,  100  Mass.  194. 

Where  loss  of  sale  of  a  thing  disparaged  is  claimed  and  relied  on  as 
special  damages  occasioned  by  the  disparagement,  it  is  indispensable 
to  allege  and  show  a  loss  of  sale  to  some  particular  person,  for  the  loss 
of  a  sale  to  some  particular  person  is  the  special  damage,  and  of  the 
gist  and  substance  of  the  action.  I  Roll.  Abr.  58 ;  Manning  v.  Avery, 
3  Keb.  153;  Tasburgh  v.  Day,  Cro.  Jac.  484;  Evans  v.  Harlow,  5 
Q.  B.  624;  Tobias  v.  Harland,  4  Wend.  537 ;  Kendall  v.  Stone,  5  N.  Y. 
14;  Swan  v.  Tappan,  5  Cush.  104;  Linden  v.  Graham,  I  Duer,  670; 
Hartley  v.  Herring,  8  Term.  R.  130;  Hallock  v.  Miller,  2  Barb.  630; 
Malachy  v.  Soper,  supra ;  Ashford  v.  Choate,  20  U.  C.  C.  P.  471 ;  3 
Suth.  Dam.  674;  Stiebeling  v.  Lockhaus,  21  Hun,  457;  Cramer  v. 
Cullinane,  2  McArthur,  197;  Bergmann  v.  Jones,  94  N.  Y.  51 ;  Bassell 
v.  Elmore,  48  N.  Y.  563 ;  Cook  v.  Cook,  100  Mass.  194 ;  Pollard  v. 
Lyon,  91  U.  S.  225  ;  Odgers,  Sland.  313  ;  Folk.  Starkie,  Sland.  (Wood's 
Ed.)  §  136;  Wetherell  v.  Clerkson,  supra;  Swan  v.  Tappan,  supra; 
Paull  v.  Halferty,  supra ;  Gott  v.  Pulsifer,  supra ;  and  see  declarations 
or  complaints  in  many  of  the  foregoing  cases,  especially  the  two  last 
cited. 

The  rule  is  not  technical,  but  substantial.  It  imposes  no  hardship 
upon  the  plaintiff.  If  there  is  a  person  to  whom  a  sale  could  have 
been  made,  in  the  absence  of  the  disparagement,  he  can  be  named,  so 
as  to  inform  defendant  of  the  particular  charge  of  damage  which  he 
is  required  to  meet.  Wetherell  v.  Clerkson,  supra.  If  there  is  no  such 
person,  there  is  no  cause  of  action;  and  it  follows  that  the  failure  to 
name  the  particular  person  or  persons  to  whom  a  sale  could  have 
been  effected,  if  it  had  not  been  prevented  by  the  disparagement,  does 
not  present  a  case  of  mere  indefiniteness,  but  of  total  absence  of  an 
allegation  essential  to  the  statement  of  a  cause  of  action,— ^-a  lack  oi 
substance,  not  of  form,  (Cook  v.  Cook,  supra;  Pollard  v.  Lyon, 
supra ;)  and  therefore  a  case  for  a  demurrer,  rather  than  for  a  motion 
to  make  more  definite  and  certain.  Pom.  Rem.  §  549. 

Order  sustaining  demurrer  approved,  and  case  remanded  for  further 
proceedings. 

(For  another  case  of  disparagement  of  goods,  see  Gott  v.  Pulsifer,  122  Mass 
235,  23  Am.  Rep.  322,  also  ante,  p.  69.  See  also  Boynton  v.  Shaw  Stocking  Co. 
146  Mass.  219,  15  N.  E.  507 ;  Tobias  v.  Harland,  4  Wend.  537 ;  Le  Massena  v. 
Storm,  62  App.  Div.  150,  70  N.  Y.  Supp.  882,  and  cases  cited.  The  doctrin* 
applies  to  written  statements  as  well  as  to  those  that  are  spoken.  Id.  No 
action  will  lie  unless  special  damage  is  proved.  Id. ;  White  v.  Mellin  [1895j 
A.  C.  154 ;  Marlin  Fire  Arms  Co.  v.  Shields,  171  N.  Y.  384,  64  N.  E.  163,  59 
L.  R.  A.  310.  If  the  disparagement  of  another  dealer's  wares  be  simply 
"putting"  or  declaring  the  superiority  of  one's  own,  this  will  not  be  actionable, 


388  LAW  OF  TORTS. 

even  though  the  statement  be  untrue  and  occasion  damage.  Hubbuck  v.  Wil- 
kinson [1899]  1  Q.  B.  80;  Nonpareil  Cork  Mfg.  Co.  v.  Keasbey  &  Mattison 
Co.  [C.  C.]  108  Fed.  721. 

Similar  rules  apply  to  a  libel  or  slander  on  one's  business  [Dudley  v. 
Briggs,  141  Mass.  582,  6  N.  E.  717,  55  Am.  Rep.  494] ;  or  on  his  place  of  busi- 
ness [Kennedy  v.  Press  Pub.  Co.,  41  Hun,  422] ;  as,  e.  g.,  where  a  newspaper 
published  that  a  man's  boarding  house  and  restaurant  was  a  resort  for  an- 
archists [Bosl  v.  New  York  Herald  Co.,  33  Misc.  Rep.  622,  68  N.  Y.  Supp.  898 ; 
Id.,  58  App.  Div.  619,  68  N.  Y.  Supp.  1134]. 

In  Dooling  v.  Budget  Pub.  Co.,  144  Mass.  258,  10  N.  E.  809,  59  Am.  Rep. 
83,  defendant  published  of  a  dinner  furnished  by  a  caterer  that  it  was 
"wretched,"  that  it  was  served  "in  such  a  way  that  hungry  barbarians  might 
justly  object"  and  that  "the  cigars  were  simply  vile,  and  the  wines  not  much 
better."  Held,  not  actionable  without  proof  of  special  damage.) 


TRESPASS  TO  LAND. 


I.  WHAT  CONSTITUTES  A  TRESPASS. 

(74  Me.   163.) 

HATCH  v.  DONNELL. 

(Supreme  Judicial  Court  of  Maine.    November  17,  1882.) 

TEESPASS  TO  LAND— WHAT  CONSTITUTES. 

An  entry  upon  the  land  of  another,  without  any  permission,  express 
or  implied,  constitutes  a  trespass,  for  which  damages  are  recoverable, 
though  merely  nominal. 

On  report. 

Action  of  trespass  quare  clausum  fregit.  The  parties  were  adjoin- 
ing owners,  the  dividing  line  being  in  dispute.  The  declaration  al- 
leged two  acts  of  trespass, — one  in  1880,  when  defendant  drove  his 
horse  and  plow  over  plaintiff's  lands,  and  one  in  1881,  when  defendant 
cultivated  the  land  in  dispute. 

APPLETON,  C.  J.  This  is  an  action  of  trespass  for  breaking  and 
entering  the  plaintiff's  close.  The  lots  of  the  plaintiff  and  defendant 
are  adjacent.  The  defendant,  when  plowing  his  land,  brought  his 
horse  and  plow  on  the  plaintiff's  land,  treading  down  her  grass  and 
knocking  off  bark  from  her  trees.  This  is  the  trespass  complained  of. 
The  defendant  had  no  right  of  entry  upon  the  plaintiff's  land.  His 
entry  was  a  trespass.  Permission  was  not  asked,  nor  license  given. 
The  plaintiff  in  no  way  consented  and  the  defendant  never  asked 


TRESPASS  TO   LAND.  389 

consent.  The  parties  rely  on  their  strict  legal  rights,  neither  asking 
of  nor  giving  any  favor  to  the  other.  The  relation  of  the  parties — the 
sedulous  care  of  each  to  preserve  existing  rights — negatives  the  idea 
of  implied,  equally  as  of  express,  permission  or  license.  In  Harmon 
v.  Harmon,  61  Me.  222,  and  in  Lakin  v.  Ames,  10  Cush.  198,  there 
was  the  fact  of  relationship  between  the  parties,  from  which,  with 
the  other  circumstances,  license  was  inferred.  Here  there  was  no 
such  fact.  No  friendly  relations  were  existing  between  the  parties. 
Their  attitude  was  mutually  adverse.  The  damages  are  merely  nom- 
inal. 

Judgment  for  plaintiff  for  one  dollar. 

BARROWS,  DANFORTH,  VIRGIN.  PETERS,  and  SY- 
MONDS,  JJ.,  concurred. 

(The  following  acts  have  been  held  to  be  trespasses  to  land:  Extending 
one's  arm  over  a  fence  dividing  his  land  from  that  of  his  neighbor  [Hannabal- 
son  v.  Sessions,  116  Iowa,  457,  90  N.  W.  93,  93  Am.  St  Rep.  250] ;  projecting  the 
eaves  of  one's  barn  over  the  neighbor's  close  [Smith  v.  Smith,  110  Mass.  302] ; 
setting  up  telegraph  poles  on  one's  land,  without  his  consent  [Board  of  Trade 
Telegraph  Co.  v.  Barnett,  107  111.  507,  47  Am.  Rep.  453] ;  cutting  down  tele- 
graph poles  standing  in  the  highway  [American  Union  Telegraph  Co.  v.  Mid- 
dleton,  80  N.  Y.  408] ;  casting  material  on  another's  land,  though  without 
negligence  [Mairs  v.  Real  Estate  Ass'n,  89  N.  Y.  498] ;  fox  hunting  over 
another's  land  without  his  consent  [Paul  v.  Summerhays,  4  Q.  B.  D.  9].  All 
persons  who  encourago  or  incite,  by  words  or  deeds,  the  commission  of  a  tres- 
pass, arc  liable  therefor.  Brown  v.  Perkins,  1  Allen,  89.) 


(12  Wend.  98.) 

GIDNEY  v.  EARL  (in  part). 
(Supreme  Court  of  New  York.    May,  1834.) 

TBESPASS— APPROPRIATION  OF  SOIL  OF  HIGHWAY— RIGHT  OF  ADJOINING  LAND- 
OWNER. ' 

For  an  appropriation  of  the  soil  of  a  public  highway,  trespass  lies  by  the 
owner  of  the  land  through  which  the  highway  passes. 

Error  from  the  Saratoga  common  pleas.  Gidney  sued  Earl  in  a 
justice's  court  in  an  action  of  trespass  for  digging  up  and  removing 
the  soil  from  a  highway  passing  through  the  land  of  the  plaintiff.  It 
was  admitted  that  the  plaintiff  owned  and  occupied  the  land  opposite  to 
which  the  soil  was  taken,  on  both  sides  of  the  road,  except  a  burying 
ground  on  the  south  side  of  the  road.  The  soil  was  taken  from  the 
north  side  of  the  road  and  deposited  in  the  defendant's  garden.  It 
was  objected  by  the  defendant  that  the  fact  of  the  plaintiff  owning 
the  lands  opposite  the  highway  did  not  prove  title  in  him  to  the  high- 
way, nor  possession,  so  as  to  enable  him  to  maintain  trespass  against 


390  LAW  OF  TORTS. 

the  defendant.  The  objection  was  sustained  by  the  justice,  who 
rendered  judgment  against  the  plaintiff  for  costs.  The  plaintiff  sued 
out  a  certiorari,  and  the  common  pleas  of  Saratoga  affirmed  the  judg- 
ment of  the  justice.  The  plaintiff  thereupon  sued  out  a  writ  of  error. 

NELSON,  J.  The  public  highways  in  this  state  were  generally 
laid  out  and  opened  according  to  the  provisions  of  some  statute  law 
existing  at  the  time.  Prescription  or  use  of  20  years  or  more  of  a 
•oad  gives  to  the  public  a  right  to  the  enjoyment  of  it  for  that  pur- 
pose in  some  cases.  The  right  of  way,  public  or  private,  is  but  an 
incorporeal  hereditament — an  easement  which,  per  se,  does  not  divest 
the  owner  of  the  fee  of  the  land ;  and  for  every  other  purpose  except 
the  use  or  servitude  as  a  public  highway  the  soil  belongs  to  him,  and 
he  is  entitled  to  the  same  remedies  for  an  injury  to  this  residuary  in- 
terest {hat  he  would  be  entitled  to  if  it  was  entire  and  absolute. 

When,  therefore,  a  road  runs  through  a  man's  close,  prima  facie 
the  fee  of  the  land  over  which  the  road  passes  belongs  to  him  as 
much  as  it  does  in  any  other  part  of  the  lot  or  tract.  The  law  will 
not  presume  a  grant  of  a  greater  interest  or  estate  than  is  essential 
to  the  enjoyment  of  the  public  easement;  the  rest  is  parcel  of  the 
close.  The  fact  that  the  highway  is  fenced  on  each  side  is  for  the 
convenience  of  the  owner,  and  has  no  necessary  connection  with  the 
road. 

It  follows,  from  the  above  view,  that  the  person  in  possession  of 
the  farm  or  lot  through  which  the  highway  passes  is,  in  contem- 
plation of  law,  in  possession  of  the  highway,  subject  to  the  public 
easement;  for,  being  in  possession  of  the  .lot,  he  is  prima  facie  in 
possession  of  every  parcel  of  it.  This  principle  is  recognized  by  the 
court  in  Cortelyou  v.  Van  Brunt,  2  Johns.  R.  363,  where  it  is  said 
the  general  rule  here  is  that  the  fee  of  the  highway  belongs  to  the 
owner  of  the  adjoining  ground,  and  that  the  sovereign  has  only  a 
right  of  passage.  It  is  but  a  servitude  or  easement,  and  trespass  will 
lie  for  any  exclusive  appropriation  of  the  soil. 

Judgment  reversed. 

(It  Is  the  general  common  law  rule  that  the  owners  of  land  on  each  side 
of  a  public  highway  own  to  the  centre  of  the  road,  subject  to  the  public  right 
of  passage.  "They  may  maintain  an  action  of  trespass  against  any  person 
who  digs  up  the  soil  of  it,  or  cuts  down  any  trees  growing  on  the  side  of  the 
road,  and  left  there  for  shade  or  ornament.  They  may  carry  water  in  pipes 
under  the  highway,  and  have  every  use  and  remedy  that  is  consistent  with 
the  servitude  or  easement  of  a  way  over  it  and  with  police  regulations." 
3  Kent's  Comm.  432.  See  also  Bloomfield  &  R.  Gaslight  Co.  v.  Calkins.  62 
N.  Y.  386 ;  Hunt  v.  Rich,  38  Me.  195 ;  Hickman  v.  Maisey  [1900]  1  Q.  B.  752 ; 
Harrison  v.  Duke  of  Rutland  [1893]  1  Q.  B.  142.) 


TRESPASS  TO   LAND.  891 

(9  Barb.  652.) 

NEWKIRK   v.    SABLER. 

(Supreme  Court  of  New  York.    December  2,  1850.) 

TRESPASS  TO  LAND— ENTBT  TO  TAKE  AWAY  PROPERTY— REPELLING  BY  FORCE. 
Plaintiff,  having  been  forbidden  to  cross  defendant's  lands,  sent  his 
servant  with  a  team  across  them.  On  the  servant's  return  to  the  bars 
where  he  had  entered,  he  found  them  nailed  up ;  whereupon  he  left  the 
team  on  defendant's  land,  and  went  and  informed  plaintiff,  who  came 
and  commenced  tearing  down  the  fence,  in  order  to  take  away  his  team, 
and,  persisting  in  his  attempt,  after  being  forbidden  by  defendant,  a 
fight  ensued,  and  plaintiff  was  injured.  Held,  that  plaintiff  had  no  right 
to  enter  upon  defendant's  land  to  take  away  his  property  without  the 
express  or  implied  consent  of  defendant,  and  that  defendant  had  the 
right  to  protect  his  possession  and  property  by  force,  and  was  not  liable 
unless  the  force  used  was  .greater  than  necessary  for  such  purpose. 
f 

Appeal  from  Circuit  Court,  Ulster  County. 

Action  for  assault  and  battery.  At  the  trial  it  appeared  that,  after 
defendant  had  forbidden  plaintiff  crossing  his  farm  lands,  plaintiff 
sent  his  servant  with  a  team  across  such  lands.  The  servant  entered 
by  taking  down  bars,  which,  on  his  return,  he  found  defendant  had 
nailed  up.  After  an  ineffectual  attempt  to  get  through,  he  left  the 
team  on  defendant's  lands,  and  went  after  plaintiff,  who  came  and 
commenced  tearing  down  the  fence  to  take  away  his  team ;  and, 
refusing  to  desist  on  defendant's  demand,  a  fight  ensued,  but  plaintiff 
succeeded  in  getting  down  the  fence  and  taking  his  team  away.  For 
the  injuries  to  plaintiff  in  the  fight  he  brought  this  action.  The  judge 
charged  the  jury  that  plaintiff  had  the  right  to  take  his  team  away, 
even  though  wrongfully  on  the  premises,  and  if  he  did  no  more  dam- 
age than  necessary  for  that  purpose  defendant  was  not  justified  in 
using  force,  and  that  the  real  question  was  as  to  whether  plaintiff 
was  at  the  time  engaged  in  wanton  and  unnecessary  destruction  of 
the  defendant's  fences ;  to  which  charge  defendant  excepted.  The  jury 
found  a  verdict  for  plaintiff  for  $50.  From  the  judgment  for  plaintiff 
entered  on  the  verdict,  defendant  appealed. 

PARKER,  J.  I  think  the  learned  justice  erred  in  holding  that  the 
plaintiff  had  a  right  to  enter  upon  the  lands  of  the  defendant  for  the 
purpose  of  regaining  possession  of  his  property.  The  right  to  land  is 
exclusive ;  and  every  entry  thereon,  without  the  owner's  leave,  or  the 
license  or  authority  of  law,  is  a  trespass.  3  Bl.  Comm.  209;  Percival 
v.  Hickey,  18  Johns.  285,  9  Am.  Dec.  210.  There  is  a  variety  of  cases 
where  an  authority  to  enter  is  given  by  law;  as,  to  execute  legal 
process ;  to  distrain  for  rent ;  to  a  landlord  or  reversioner,  to  see  that 
his  tenant  does  not  commit  waste,  and  keeps  the  premises  in  repair 
according  to  his  covenant  or  promise ;  to  a  creditor,  to  demand  money 


392  LAW  OF  TORTS. 

payable  there ;  or  to  a  person  entering  an  inn,  for  the  purpose  of 
getting  refreshment  there.  3  Bl.  Comm.  212;  i  Cow.  Treat.  411. 
In  some  cases,  a  license  will  be  implied ;  as,  if  a  man  makes  a  lease, 
reserving  the  trees,  he  has  a  right  to  enter  and  show  them  to  the 
purchaser.  Lampet  v.  Starkey,  10  Coke,  46.  Where  the  owner  of 
the  soil  sells  the  chattels  being  on  his  land;  as,  if  he  sell  a  tree,  a 
crop,  a  horse,  or  a  fanning-mill,  which  remain  within  his  close,  he 
at  the  same  time  passes  to  the  vendee,  as  incident  to  such  sale,  a  right 
to  go  upon  the  premises,  and  take  away  the  subject  of  his  purchase, 
without  being  adjudged  a  trespasser.  I  Cow.  Treat.  367 ;  Bac.  Abr. 
"Trespass,"  F;  Winterbourne  v.  Morgan,  n  East,  396;  2  Rolle,  Abr. 
567,  m.  n.  i.  And  if  a  man  in  virtue  of  his  license  erects  a  building 
on  another's  land,  this  license  cannot  be  revoked  so  entirely  as  to 
make  the  person  who  erected  it  a  trespasser  for  entering  and  remov- 
ing it  after  the  revocation.  In  some  cases  the  motive  will  excuse 
the  entry.  If  J.  S.  goes  into  the  close  of  J.  N.  to  succor  the  beast 
of  J.  N.,  the  life  of  which  is  in  danger,  an  action  of  trespass  will  not 
lie ;  because  as  the  loss  of  J.  N.,  if  the  beast  had  died,  would  have 
been  irremediable,  the  doing  of  this  is  lawful.  But  if  J.  S.  go  into  the 
close  of  J.  N.  to  prevent  the  beast  of  J.  N.  from  being  stolen,  or  to 
.prevent  his  corn  from  being  consumed  by  hogs,  or  spoiled,  the  action 
of  trespass  lies ;  for  the  loss,  if  either  of  the  ;e  things  had  happened, 
would  not  have  been  irremediable.  Bac.  Abr.  "Trespass,"'  F.  And 
if  a  stranger  chase  the  beast  of  A,  which  is  damage-feasant  therein, 
out  of  the  close  of  B,  trespass  will  lie ;  for  by  doing  this,  although 
it  seems  to  be  for  his  benefit,  B  is  deprived  of  his  right  to  distrain 
the  beast.  Brooke,  Abr.  "Trespass,"  pi.  421 ;  Keilw.  46. 

In  some  cases,  the  entry  will  be  excused  by  necessity;  as,  if  a  pub- 
lic highway  is  impassable,  a  traveler  may  go  over  the  adjoining  land. 
Absor  v.  French,  2  Show.  28;  Asser  v.  Finch,  2  Lev.  234;  Young  v. 

,  i  Ld.  Raym.  725.  But  this  would  not  extend  to  a  private 

way ;  for  it  is  the  owner's  fault  if  he  does  not  keep  it  in  repair.  Taylor 
v.  Whitehead,  2  Doug.  747;  Pomfret  v.  Ricroft,  1  Saund.  321.  So 
if  a  man  who  is  assaulted,  and  in  danger  of  his  life,  run  through  the 
close  of  another,  trespass  will  not  lie,  because  it  is  necessary  for  the 
preservation  of  his  life.  Y.  B.  37  Hen.  VI.  37,  pi.  26.  If  my  tree 
be  blown  down,  and  fall  on  the  land  of  my  neighbor,  I  may  go  on 
and  take  it  away.  Brooke,  Abr.  "Trespass,"  pi.  213.  And  the  same  rule 
prevails  where  fruit  falls  on  the  land  of  another.  Miller  v.  Fawdry, 
Latch,  120.  But  if  the  owner  of  a  tree  cut  the  loppings  so  that  they 
fall  on  another's  land,  he  cannot  be  excused  for  entering  to  take  them 
away,  on  the  ground  of  necessity,  because  he  might  have  prevented 
it.  Bac.  Abr.  "Trespass,"  F. 

Sometimes  the  right  of  action  depends  on  the  question,  which  is 
the  first  wrongdoer?  If  J.  S.  have  driven  the  beast  of  J.  N.  into  the 
close  of  J.  S.,  or  if  it  have  been  driven  therein  by  a  stranger,  with 


TRESPASS  TO  LAND.  393 

the  consent  of  J.  S.,  and  J.  N.  go  thereinto  and  take  it  away,  trespass 
will  not  lie,  because  J.  S.  was  himself  the  first  wrong-doer.  2  Rolle, 
Abr.  566,  pi.  9;  Chapman  v.  Thumblethorp,  Cro.  Eliz.  329.  Tested 
by  that  rule,  the  plaintiff  in  this  suit  certainly  has  no  right  of  action ; 
for  he  was  the  first  wrong-doer.  But  it  is  well  settled  that  where 
there  is  neither  an  express  nor  an  implied  license,  nor  any  such  legal 
excuse  as  is  above  stated,  a  man  has  no  right  to  enter  upon  the  land 
of  another  for  the  puipose  of  taking  away  a  chattel  being  there, 
which  belongs  to  the  former.  The  mere  fact  that  the  plaintiff  owns 
the  chattel  gives  him  no  authority  to  go  upon  the  land  of  another 
to  get  it.  In  Heermance  v.  Vernoy,  6  Johns.  5,  where  A  has  entered 
upon  the  land  of  B  without  his  permission,  to  take  a  chattel  belonging 
to  A,  it  was  held  to  be  a  trespass.  So  in  Blake  v.  Jerome,  14  Johns. 
406,  a  mare  and  colt  were  taken  out  of  the  plaintiff's  field,  by  a  person 
who  acted  under  the  orders  and  directions  of  the  defendant,  after 
they  had  been  demanded  by  the  defendant  and  refused  to  be  delivered 
to  him,  and  after  he  had  been  expressly  forbidden  to  take  them ;  and 
the  defendant  was  held  to  be  guilty  of  a  trespass. 

In  this  case,  the  plaintiff's  horses  and  wagon  were  on  the  lands  of 
the  defendant,  where  they  had  been  left  by  the  servant  of  the  plaintiff. 
They  were  not  there  by  the  defendant's  permission.  On  the  contrary, 
the  plaintiff  had  been  guilty  of  a  trespass  in  sending  his  team  across 
the  lands  of  the  defendant  after  he  had  been  forbidden  to  do  so.  And 
1  think  the  defendant  had  the  right  to  detain  them  before  they  left 
the  premises,  and  to  distrain  them  damage-feasant.  2  Rev.  St.  p.  427. 
But  it  is  not  necessary  to  decide  whether  the  defendant  detained  the 
property  rightfully  or  wrongfully. 

The  plaintiff  attempted  to  enter  upon  the  lands  of  the  defendant 
and  against  his  will,  for  the  purpose  of  taking  away  his  property. 
This  he  had  no  right  to  do,  even  though  his  property  was  unlawfully 
detained  there.  If  the  plaintiff  could  not  regain  the  possession  of  his 
property  peaceably,  he  should  have  resorted  to  his  legal  remedy, 
by  which  he  could,  after  demand  and  refusal,  have  recovered  the 
property  itself  or  its  value.  He  had  no  right  to  redress  himself  by 
force.  3  Bl.  Comm.  4.  In  pursuing  his  object,  the  plaintiff  tore  down 
the  defendant's  fence  after  he  had  been  forbidden  to  enter,  and  after 
he  had  been  ordered  by  the  defendant  to  desist.  The  defendant  had 
a  right  to  protect  himself  in  the  enjoyment  of  his  possession  and  his 
property,  by  defending  them  against  such  aggression.  Weaver  v. 
Bush,  8  Term  R.  78;  Gregory  v.  Hill,  Id.  299;  Greene  v.  Jones,  I 
Saund.  296,  note  I ;  Green  v.  Goddard,  2  Salk.  641 ;  Turner  v.  Mey- 
mott,  I  Bing.  158;  3  Bl.  Comm.  5. 

The  defendant  cannot  be  held  liable  for  the  injuries  inflicted  upon 
the  plaintiff  on  the  occasion  in  question,  unless  he  used  more  force 
than  was  necessary  for  the  defense  of  his  possession ;  and  it  seems 
he  did  not  use  enough  to  prevent  the  plaintiff's  effecting  his  forcible 


394  LAW  OF  TORTS. 

entry  and  taking  away  the  property.  But  that  was  a  question  propei 
to  be  submitted  to  the  jury.  The  judgment  of  the  circuit  court  must 
be  reversed,  and  a  new  trial  awarded,  costs  to  abide  the  event. 

(See  also  Anthony  v.  Haney,  8  Bing.  186;  Blades  v.  Higgs,  11  H.  L.  C. 
';•_>!:  Smith  v.  Hale,  158  Mass.  178,  33  N.  E.  493,  35  Am.  St.  Rep.  485;  Me- 
Leod  v.  Jones,  105  Mass.  403,  7  Am.  Rep.  539 ;  Crocker  v.  Carson,  33  Me.  436 ; 
Sterling  v.  Warden,  51  N.  H.  217,  12  Am.  Rep.  80.) 


(1  N.  T.  515,  49  Am.  Dec.  346.) 

VAN  LEUVEN  v.  LYKE  et  al. 

(Court  of  Appeals  of  New  York.    November,  1848.) 

1.  TRESPASS  TO  LAND— DOMESTIC  ANIMALS. 

The  owner  of  domestic  animals,  such  as  horses,  oxen,  sheep,  swine, 
etc.,  is  liable  to  an  action  of  trespass  quare  clausum  fregit  if  they  escape 
from  his  premises  and  go  upon  the  land  of  another,  though  he  had  no 
notice  in  fact  of  their  having  such  propensity.  There  are  other  actions 
for  injuries  done  by  animals  in  which  scienter  must  be  proved,  but  this 
is  not  the  case  when  the  action  is  for  a  trespass. 

2.  SAME. 

Plaintiff's  cow  and  calf  were  killed  by  being  bitten  by  defendants' 
sow  and  pigs  in  plaintiff's  close,  while  the  cow  was  in  the  act  of  calving. 
Held,  that  plaintiff  could  not  recover,  as  he  did  not  allege  in  his  declara- 
tion or  prove  at  the  trial  that  defendants  knew  of  such  vicious  propensity 
on  the  part  of  the  sow  and  pigs,  or  that  the  animals  were  trespassing  on 
plaintiff's  close. 

Error  to  Supreme  Court. 

i  Action  of  trespass  brought  in  a  justice's  court.  Plaintiff  recovered 
judgment,  which  was  affirmed  on  certiorari  by  the  court  of  common 
pleas,  but  reversed  by  the  supreme  court  on  error.  4  Denio,  127. 
To  review  the  judgment  of  the  supreme  court  plaintiff  brought  error. 

JEWETT,  C.  J.  It  is  alleged  in  the  plaintiff's  declaration  "that 
on  the  27th  day  of  November,  1844,  at"  etc.,  "the  defendants  were 
the  owners  of  a  certain  sow  and  pigs,  which  sow  and  pigs,  to-wit, 
on  the  day  and  year  aforesaid,  to-wit,  at  the  place  aforesaid,  bit,  dam- 
aged, and  mutilated  and  mangled  a  certain  cow  and  calf  of  the  plain- 
tiff, while  the  said  cow  was  in  the  act  of  calving,  so  that  said  cow 
and  calf  both  died,  to  the  plaintiff's  damage  $50;"  to  which  the  de- 
fendants pleaded  the  general  issue.  There  was  evidence  given  on 
the  trial  sufficient  to  warrant  the  jury  in  finding  that  the  plaintiff's 
cow  and  calf  were  destroyed  by  the  defendants'  sow  and  pigs  in  the 
manner  set  forth  in  the  declaration,  upon  the  land  of  the  plaintiff, 
where  the  sow  and  pigs  were  at  the  time  of  committing  the  said  in- 


TRESPASS  TO   LAND.  895 

jury.  But  there  is  no  allegation  in  the  declaration,  or  evidence  given 
on  the  trial,  that  swine  possess  natural  propensities  which  lead  them, 
instinctively,,  to  attack  or  destroy  animals  in  the  condition  of  plain- 
tiff's cow  and  calf.  Nor  is  there  any  allegation  or  evidence  that  the 
defendants  previously  knew,  or  had  notice,  that  their  swine  were 
accustomed  to  do  such  or  similar  mischief,  or  that  the  swine  broke 
and  entered  the  plaintiff's  close,  and  there  committed  the  mischief 
complained  of. 

It  is  a  well-settled  principle  that,  in  all  cases  where  an  action  of 
trespass  or  case  is  brought  for  mischief  done  to  the  person  or  personal 
property  of  another  by  animals  mansuetse  naturae,  such  as  horses, 
oxen,  cows,  sheep,  swine,  and  the  like,  the  owner  must  be  shown 
to  have  had  notice  of  their  viciousness  before  he  can  be  charged, 
because  such  animals  are  not  by  nature  fierce  or  dangerous,  and 
such  notice  must  be  alleged  in  the  declaration;  but  as  to  animals 
ferae  naturae,  such  as  lions,  tigers,  and  the  like,  the  person  who  keeps 
them  is  liable  for  any  damage  they  may  do,  without  notice,  on  the 
ground  that  by  nature  such  animals  are  fierce  and  dangerous.  9 
Bac.  Abr.  tit.  "Trespass,"  1-505,  506;  Jenkins  v.  Turner,  I  Ld.  Raym. 
109;  Mason  v.  Keeling,  Id.  606,  12  Mod.  332;  Rex  v.  Huggins,  2 
Ld.  Raym.  1583,  i  Chit.  PL  (Ed.  1812,)  69,  70;  Vrooman  v.  Lawyer, 
13  Johns,  339;  Hinckley  v.  Emerson,  4  Cow.  351,  15  Am.  Dec.  383. 
But  this  rule  does  not  apply  where  the  mischief  is  done  by  such 
animals  while  committing  a  trespass  upon  the  close  of  another. 

The  common  law  holds  a  man  answerable,  not  only  for  his  own 
trespass,  but  also  for  that  of  his  domestic  animals;  and  as  it  is  the 
natural  and  notorious  propensity  of  many  such  animals,  such  as 
horses,  oxen,  sheep,  swine,  and  the  like  to  rove,  the  owner  is  bound, 
at  his  peril,  to  confine  them  on  his  own  land ;  and  if  they  escape,  and 
commit  a  trespass  on  the  lands  of  another,  unless  through  defect  of 
fences  which  the  latter  ought  to  repair,  the  owner  is  liable  to  an  action 
of  trespass  quare  clausum  fregit,  though  he  had  no  notice  in  fact 
of  such  propensity.  3  Bl.  Comm.  211 ;  I  Chit.  PI.  70.  And  where  the 
owner  of  such  animals  does  not  confine  them  on  his  own  land,  and 
they  escape  and  commit  a  trespass  on  the  lands  of  another,  without 
the  fault  of  the  latter,  the  law  deems  the  owner  himself  a  trespasser 
for  having  permitted  his  animals  to  break  into  the  inclosure  of  the 
former  under  such  circumstances;  and,  in  declaring  against  the  de- 
fendant in  an  action  for  such  trespass,  it  is  competent  for  the  plaintiff 
to  allege  the  breaking  and  entering  his  close  by  such  animals  of  the 
defendant,  and  there  committing  particular  mischief  or  injury  to 
the  person  or  property  of  the  plaintiff,  and,  upon  proof  of  the  allega- 
tion, to  recover  as  well  for  the  damage  for  the  unlawful  entry  as  for 
the  other  injuries  so  alleged,  by  way  of  aggravation  of  the  trespass, 
without  alleging  or  proving  that  the  defendant  had  notice  that  his  ani- 


396  LAW  OF  TORTS. 

mals  had  been  accustomed  to  do  such  or  similar  mischief.  The  break- 
ing and  entering  the  close  in  such  action  is  the  substantive  allegation, 
and  the  rest  is  laid  as  matter  of  aggravation  only. 

This  principle  is  recognized  as  sound  by  several  adjudged  cases. 
In  the  case  of  Beckwith  v.  Shordike,  4  Burrows,  2092,  the  action 
was  trespass  for  entering  the  plaintiff's  close  with  guns  and  dogs, 
and  killing  his  deer.  The  evidence  showed  that  the  defendants  en- 
tered with  guns  and  dogs,  into  a  close  of  the  plaintiff  adjoining  to 
his  paddock,  and  that  their  dog  pulled  down  and  killed  one  of  the 
plaintiff's  deer.  It  was  held  to  be  sufficient  evidence  to  prove  the 
defendants  trespassers,  and  they  were  held  liable  for  the  injury  done 
by  their  dog,  although  it  was  not  shown  that  they  had  any  knowledge 
or  notice  of  the  propensity  of  the  dog  to  do  such  or  similar  injury. 
In  Angus  v.  Radin,  5  N.  J.  Law,  815,  8  Am.  Dec.  626,  the  action 
was  trespass  for  the  defendant's  oxen  breaking  into  the  inclosure  of 
the  plaintiff,  and  there  goring  his  cow,  so  as  to  kill  her ;  and  upon  the 
ground  that  the  defendant  had  neglected  to  confine  his  oxen  on  his 
own  land,  and  that  they  were  trespassing  on  the  land  of  the  plaintiff, 
he  was  held  liable  for  the  injury  done,  although  it  was  not  alleged 
or  proved  that  he  knew  or  had  notice  of  the  propensity  of  his  oxen 
to  commit  such  an  injury.  And  so  in  Dolph  v.  Ferris,  7  Watts  & 
S.  367,  42  Am.  Dec.  246,  where  the  action  was  trespass  before  a  jus- 
tice of  the  peace,  and  there  tried  without  any  declaration  having  been 
filed.  Therefore  the  court  held  that  the  case  must  be  considered 
as  if  the  case  had  been  tried  on  the  most  favorable  declaration  for  the 
plaintiff  which  the  evidence  would  have  warranted.  The  evidence  was 
that  the  bull  of  the  defendant,  which  was  running  at  large,  broke  and 
entered  into  the  inclosure  of  the  plaintiff,  where  his  horse  was  feeding 
on  the  grass  growing  therein,  and  gored  him  so  that  he  died  by  rea- 
son thereof  in  a  few  days.  The  court  held  it  to  be  clear  from  the 
evidence  that  the  defendant  might  have  been  declared  against  for 
having  broken  and  entered  the  close  of  the  plaintiff,  and  the  grass 
and  herbage  of  the  plaintiff,  there  lately  growing,  with  his  bull  eaten 
up,  trod  down,  and  consumed,  and  might  also  have  been  charged 
in  the  same  declaration  with  having  killed  or  destroyed  the  plaintiff's 
horse  or  colt  with  his  bull.  But  in  the  case  under  consideration  there 
is  no  allegation  charging  the  defendants'  swine  with  doing  any  act 
for  which  the  law  holds  the  defendants  accountable  to  the  plaintiff 
without  alleging  and  proving  a  scienter.  Had  the  plaintiff  stated 
in  his  declaration  such  ground  of  liability,  or  had  charged  that  the 
swine  broke  and  entered  his  close,  and  there  committed  the  mischief 
complained  of,  and  sustained  his  declaration  by  evidence,  I  am  of 
opinion  that  he  would  have  been  entitled  to  recover  all  the  damages 
thus  sustained;  but,  as  he  has  not  stated  in  his  declaration  either 
ground  of  liability,  the  defendants  ought  not  to  be  deemed  to  have 


TRESPASS   TO    LAND.  397 

waived  the  objection  by  not  making  it  specifically  before  the  justice. 
I  think  the  judgment  should  be  affirmed. 
Judgment  affirmed. 

(See  also  Phillips  v.  Covell,  79  Hun,  210,  29  N.  T.  Supp.  613  [trespass  by 
sheep].  Where  a  person's  horse  kicked  and  bit  a  mare  on  adjacent  premises, 
this  was  held  a  trespass,  as  the  horse's  mouth  and  feet  protruded  through 
the  fence  over  the  land.  Ellis  v.  Loftus  Iron  Co.,  L.  R.  10  C.  P.  10.) 


II.  TRESPASS  IS  AN  INJURY  TO  THE  POSSESSION. 

(15  111.   558.) 
HALLIGAN  v.  CHICAGO  &  R.  I.  R.  CO. 

(Supreme  Court  of  Illinois.    June  Term,  1854.) 

1.  TRESPASS  TO  LANDS— WHO  MAY  MAINTAIN. 

The  gist  of  the  action  of  trespass  to  lands  is  the  injury  to  the  posses- 
sion, and  he  only  can  maintain  the  action  who  either  has  or  is  entitled 
to  the  possession.  Where  the  land  is  occupied  by  the  owner's  tenant,  the 
owner  cannot  maintain  the  action. 

2.  SAME— PLEADING— DUPLICITY. 

A  single  trespass  may  be  committed  on  several  closes,  and  one  action 
maintained  therefor  as  one  trespass. 

Appeal  from  Circuit  Court,  La  Salle  County. 

Action  of  trespass  to  land,  brought  by  Patrick  Halligan  against 
the  Chicago  &  Rock  Island  Railroad  Company.  Defendant's  de- 
murrer to  the  declaration  was  sustained,  and  plaintiff  appealed. 

TREAT,  C.  J.  This  was  an  action  of  trespass  quare  clausum  fregit, 
brought  by  Halligan  against  the  Chicago  &  Rock  Island  Railroad 
Company.  The  first  three  counts  of  the  declaration  alleged,  in  sub- 
stance, that  the  defendant,  on  the  ist  of  January,  1853,  broke  and  en- 
tered two  closes,  the  property  of  the  plaintiff,  situated  in  the  county 
of  La  Salle,  and  described  as  the  west  half  of  lot  10,  in  block  152, 
and  lot  3,  in  block  16,  in  the  city  of  Peru,  and  pulled  down  and  de- 
stroyed two  houses  standing  thereon.  The  fourth  count  alleged  that 
the  defendant,  "on  the  day  and  year  aforesaid,  with  force  andvarms, 
broke  and  entered  the  aforesaid  closes  of  the  said  Patrick  Halligan, 
and  then  and  there  ejected,  expelled,  put  out,  and  amoved  the  said 
Patrick  Halligan  and  his  family  and  servants,  and  divers  other  per- 
sons, to-wit,  Michael  Pendergast  and  Alexander  Frinkler,  tenants 
of  the  said  Patrick  Halligan,  (said  tenants  then  and  there  using  and 
occupying  said  premises  for  hire,  and  paying  unto  the  said  Patrick 
Halligan  therefor  at  the  rate  of  $1,000  per  annum,)  from  the  posses- 
sion, use,  occupation,  and  enjoyment  of  the  said  premises,  and  kept 


398  LAW  OF  TORTS. 

and  continued  the  said  Patrick  Halligan  and  his  family  and  servants, 
and  also  his  said  tenants,  so  ejected,  expelled,  put  out,  and  amoved, 
for  a  long  space  of  time,  to-wit,  from  thence  hitherto;  whereby  the 
said  Patrick  Halligan,  for  and  during  all  that  time,  lost  and  was  de- 
prived of  the  use  and  benefit  of  the  said  premises,  and  of  the  rents, 
issues,  and  profits  thereof,  accruing  to  the  said  Patrick  Halligan 
from  said  tenants,  to-wit,  at  the  county  aforesaid,  to  the  damage  of 
the  said  Patrick  Halligan."  The  defendant  demurred  to  the  declara- 
tion, and  assigned,  as  special  causes  of  demurrer  to  the  fourth  count, 
that  it  alleged  two  distinct  causes  of  action,  and  showed  the  locus 
in  quo  to  have  been  in  the  possession  of  other  parties.  The  court 
overruled  the  demurrers  to  the  three  first  counts,  and  sustained 
the  demurrer  to  the  fourth  count.  The  plaintiff  thereupon  entered 
nolle  prosequi  as  to  the  first  three  counts,  and  the  defendant  had 
judgment  on  the  demurrer  to  the  fourth  count. 

The  question  in  the  case  is  whether  the  fourth  count  shows  a  cause 
of  action  in  the  plaintiff.  The  first  objection  to  the  count  is  not 
tenable.  An  allegation  of  a  trespass  to  two  or  more  closes  is  allowa- 
ble. A  single  trespass  may  be  committed  on  several  closes.  If  a 
party  at  the  same  time  enters  upon  two  closes  belonging  to  another, 
he  may  be  treated  as  guilty  of  but  one  trespass.  The  owner  may, 
on  a  single  count,  recover  damages  commensurate  with  the  injury. 
This  count  alleges  an  entry  on  both  lots  as  one  act,  and  is  therefore 
not  obnoxious  to  the  charge  of  duplicity.  See  Tapley  v.  Wainwright, 

5  Barn.  &  Adol.  395 ;  Phythian  v.  White,  I  Mees.  &  W.  216. 

To  maintain  trespass  quare  clausum  fregit,  the  plaintiff  must  have 
the  actual  or  constructive  possession  of  the  premises.  The  gist  of 
the  action  is  the  injury  to  the  possession.  If  the  premises  are  oc- 
cupied, the  action  must  be  brought  by  the  party  in  possession ;  if 
unoccupied,  by  the  party  having  the  title  and  the  right  to  the  pos- 
session. The  owner  cannot  maintain  the  action,  where  the  land  is 
in  the  occupancy  of  his  tenant.  The  trespass  is  a  disturbance  of  the 
tenant's  possession,  and  he  alone  can  bring  the  action.  Bac.  Abr. 
"Trespass,"  c.  3;  I  Chit.  PI.  202;  Campbell  v.  Arnold,  I  Johns.  511; 
Holmes  v.  Seely,  19  Wend.  507;  Bartlett  v.  Perkins,  13  Me.  87;  Rous- 
sin  v.  Benton,  6  Mo.  592 ;  Davis  v.  Clancy,  3  McCord,  422.  If  the 
trespass  is  prejudicial  to  the  inheritance,  the  remedy  of  the  owner  is 
by  an  action  on  the  case.  He  may,  in  that  form  of  action,  recover 
damages  for  any  injury  to  the  freehold.  Bedingfield  v.  Onslow,  3 
Lev.  209;  Jesser  v.  Gifford,  4  Burrows,  2141;  Lienow  v.  Ritchie,  8 
Pick.  235 ;  Brown  v.  Dinsmoor,  3  N.  H.  103 ;  Randall  v.  Cleaveland, 

6  Conn.  328 ;  Hall  v.  Snowhill,  14  N.  J.  Law,  8. 

If  Pendergast  and  Frinkler  were  in  the  possession  of  the  lots  as 
the  tenants  of  the  plaintiff  when  the  injury  was  committed,  it  is  clear 
that  they  alone  can  maintain  trespass.  In  such  event,  the  entry  was 


TRESPASS  TO  LAND.  399 

an  interference  with  their  possession.  The  plaintiff  had  no  possession 
to  be  invaded.  For  an  injury  to  the  reversion,  he  has  an  adequate 
remedy  in  another  form  of  action.  The  count  in  question  does  not 
disclose  a  state  of  case  that  entitles  the  plaintiff  to  maintain  the  ac- 
tion of  trespass.  It  shows  that  the  lots  were  in  the  actual  possession 
of  his  tenants.  It  alleges  that  his  "tenants  were  then  and  there  using 
and  occupying  said  premises  for  hire,  and  paying  unto  him  therefor  at 
the  rate  of  $1,000  per  annum."  This  language  clearly  implies  a 
leasing  of  the  whole  of  the  lots,  and  an  exclusive  possession  thereof 
by  the  tenants.  Nor  is  there  anything  in  the  count  that  is  necessarily 
inconsistent  with  the  truth  of  this  averment.  It  indeed  alleges  an 
expulsion  of  the  plaintiff  and  his  family  from  the  lots.  It  may,  how- 
ever, be  that  they  were  temporarily  on  the  premises  as  the  guests 
of  the  tenants,  or  for  some  purpose  consistent  with  an  exclusive 
right  in  the  tenants.  If  so,  the  injury  complained  of  only  amounted 
to  a  trespass  to  their  persons.  The  count  does  not  show  such  a 
possession  in  the  plaintiff  as  authorizes  him  to  maintain  trespass 
quare  clausum  fregit.  It  ought  clearly  to  show  that  he  had  the  actual 
or  constructive  possession  of  the  premises,  or  some  part  thereof. 
If  the  lease  reserved  a  part  of  the  lots,  or  if  the  plaintiff  was  at  the 
time  of  the  trespass  in  the  exclusive  possession  of  some  portion 
thereof,  the  count  should  so  have  stated.  As  respects  such  portion, 
the  action  might  be  sustained.  There  was  no  occasion  for  the  plain- 
tiff to  refer  to  the  lease ;  but,  having  introduced  it  into  the  declaration, 
it  was  incumbent  on  him  to  show  that  it  did  not  conclude  him  from 
maintaining  the  action. 

There  are  some  cases  which  hold  that  trespass  quare  clausum  fregit 
may  be  maintained  by  the  owner  for  an  injury  to  the  freehold,  though 
the  land  may  be  in  the  possession  of  his  tenant  at  will.  Starr  v.  Jack- 
son, II  Mass.  519;  Hingham  v.  Sprague,  15  Pick.  102;  Curtiss  v. 
Hoyt,  19  Conn.  154,  48  Am.  Dec.  149;  Davis  v.  Nash,  32  Me.  411. 
And  it  is  insisted  that  this  action  may  be  sustained  on  the  authority 
of  these  cases.  But  there  is  a  conclusive  answer  to  this  position. 
It  does  not  appear  that  the  parties  in  possession  were  the  tenants  at 
will  of  the  plaintiff.  The  precise  character  of  the  tenancy  is  not  stated 
in  the  declaration.  It  is  alleged  that  Pendergast  and  Frinkler  were 
the  lessees  of  the  premises,  paying  rent  therefor  at  the  rate  of  $1,000 
per  annum.  The  inference  from  this  statement  is  that  the  demise  was 
for  a  definite  period,  as  a  month  or  a  year,  rather  than  at  the  mere 
will  of  the  lessor.  In  order  to  sustain  the  case  on  the  ground  indi- 
cated, it  should  distinctly  appear  that  Pendergast  and  Frinkler  were 
tenants  at  the  will  of  the  plaintiff.  Intendments  are  not  indulged 
to  sustain  a  pleading.  If  subject  to  the  charge  of  uncertainty  or  am- 
biguity,-it  is  to  be  construed  most  strongly  against  the  pleader.  If 
an  allegation  is  equivocal,  and  two  meanings  present  themselves, 


400  LAW  OF  TORTS. 

the  one  will  be  adopted  that  is  most  unfavorable  to  the  party  pleading, 
i  Chit.  PI.  272;  Steph.  PI.  379. 
The  judgment  is  affirmed. 

(To  the  same  effect  are  Gait  v.  Chicago  &  N.  W.  R.  Co.,  157  111.  125,  132, 
41  N.  E.  643;  Gunsolus  v.  Lormer,  54  Wis.  630,  12  N.  W.  62;  Bascoui  v. 
Dempsey,  143  Mass.  409,  9  N.  E.  744;  Percival  v.  Chase,  182  Mass.  371,  Go 
N.  E.  800;  Alexander  v.  Hard,  64  N.  Y.  228;  Zorn  v.  Haake,  75  Hun,  235. 
27  N.  Y.  Supp.  38 ;  Chandler  v.  Walker,  21  N.  H.  282,  53  Am.  Dec.  202 ;  Bur- 
gess of  New  Windsor  v.  Stocksdale,  95  Md.  196,  52  Atl.  596;  More  v.  Perry, 
61  Mo.  174.) 


III.  TRESPASS  AB   INITIO. 

(8  Coke,  146a,  1  Smith,  Lead.  Gas.  62.) 

SIX  CARPENTERS'  CASE  (in  part). 

(Court  of  King's  Bench.     Michaelmas  Term,  1610.) 

1.  TRESPASS  TO  LAND — AB  INITIO. 

The  abuse  of  a  license  to  enter  premises  given  by  law  makes  the  party 
a  trespasser  ab  initio ;  but  otherwise  where  the  license  to  enter  was 
given  by  the  person  in  possession. 

2.  SAME— WHAT  CONSTITUTES. 

Defendants  went  into  plaintiff's  public  tavern,  ordered  and  drank  wine, 
and  then  refused  to  pay  for  it  Held,  that  they  were  not  trespassers  ab 
initio ;  for  the  mere  not  doing  is  no  trespass. 

In  trespass  brought  by  John  Vaux  against  Thomas  Newman,  car- 
penter, and  five  other  carpenters,  for  breaking  his  house,  and  for 
an  assault  and  battery,  ist  September,  7  Jac.,  in  London,  in  the  par- 
ish of  St.  Giles  extra  Cripplegate,  in  the  ward  of  Cripplegate,  etc., 
and  upon  the  new  assignment,  the  plaintiff  assigned  the  trespass  in  a 
house  called  the  "Queen's  Head."  The  defendants  to  all  the  tres- 
pass praeter  fractionem  domus  pleaded  not  guilty,  and  as  to  the 
breaking  of  the  house,  said  that  the  said  house  praed'  tempore  quo, 
etc.,  et  diu  antea  et  postea,  was  a  common  wine  tavern,  of  the  said 
John  Vaux,  with  a  common  sign  at  the  door  of  the  said  house  fixed, 
etc.,  by  force  whereof  the  defendants,  prsed'  tempore  quo,  etc.,  viz., 
bora  quarta  post  meridiem  into  the  said  house,  the  door  thereof  being 
open,  did  enter,  and  did  there  buy  and  drink  a  quart  of  wine,  and 
there  paid  for  the  same,  etc.  The  plaintiff,  by  way  of  replication, 
did  confess  that  the  said  house  was  a  common  tavern,  and  that  they 
entered  into  it,  and  bought  and  drank  a  quart  of  wine,  and  paid  for  it ; 
but  further  said  that  one  John  Ridding,  servant  of  the  said  John 
Vaux,  at  the  request  of  the  said  defendants,  did  there  then  deliver 
them  another  quart  of  wine,  and  a  pennyworth  of  bread,  amounting 


TRESPASS  TO  LAND.  401 

to  8d.,  and  then  they  there  did  drink  the  said  wine,  and  eafthe  bread, 
and  upon  request  did  refuse  to  pay  for  the  same:  upon  which  the 
defendants  did  demur  in  law :  and  the  only  point  in  this  case  was,  if 
the  denying  to  pay  for  the  wine,  or  non-payment,  which  is  all  one 
'for  every  non-payment  upon  request,  is  a  denying  in  law)  makes 
the  entry  into  the  tavern  tortious. 

And,  first,  it  was  resolved  when  an  entry,  authority,  or  license  is 
given  to  any  one  by  the  law,  and  he  doth  abuse  it,  he  shall  be  a  tres- 
passer ab  initio;  but  where  an  entry,  authority,  or  license,  is  given 
by  the  party,  and  he  abuses  it,  there  he  must  be  punished  for  his 
abuse,  but  shall  not  be  a  trespasser  ab  initio.  And  the  reason  of 
this  difference  is  that  in  the  case  of  a  general  authority  or  license 
of  law,  the  law  adjudges  by  the  subsequent  act  quo  animo,  or  to  what 
intent,  he  entered ;  for  acta  exteriora  indicant  interiora  secreta.  But 
when  the  party  gives  an  authority  or  license  himself  to  do  anything, 
he  cannot,  for  any  subsequent  cause,  punish  that  which  is  done  by 
his  own  authority  or  license ;  and  therefore  the  law  gives  authority 
to  enter  into  a  common  inn  or  tavern :  so  to  the  lord  to  distrain ; 
to  the  owner  of  the  ground  to  distrain  damage-feasant ;  to  him  in 
reversion  to  see  if  waste  be  done ;  to  the  commoner  to  enter  upon  the 
land  to  see  his  cattle,  and  such  like.  But  if  he  who  enters  into  the 
inn  or  tavern  doth  a  trespass,  as  if  he  carries  away  anything;  or  if 
the  lord  who  distrains  for  rent  or  the  owner  for  damage-feasant,  works 
or  kills  the  distress;  or  if  he  who  enters  to  see  waste  breaks  the 
house,  or  stays  there  all  night ;  or  if  the  commoner  cuts  down  a  tree ; 
in  these  and  the  like  cases,  the  law  adjudges  that  he  entered  for 
that  purpose ;  and  because  the  act  which  demonstrates  it  is  a  trespass, 
he  shall  be  a  trespasser  ab  initio. 

2.  It  was  resolved  per  totam  curiam,  that  not  doing  cannot  make 
the  party  who  has  authority  or  license  by  the  law  a  trespasser  ab 
initio,  because  not  doing  is  no  trespass ;  and  therefore,  if  the  lessor 
distrains  for  his  rent,  and  thereupon  the  lessee  tenders  him  the  rent 
and  arrears,  etc.,  and  requires  his  beasts  again,  and  he  will  not  de- 
liver them,  this  not  doing  cannot  make  him  a  trespasser  ab  initio, 
and  therewith  agrees  33  Hen.  VI.  473.  So  if  a  man  takes  cattle 
damage-feasant,  and  the  other  offers  sufficient  amends,  and  he  re- 
fuses to  redeliver  them,  now  if  he  sues  a  replevin,  he  shall  recover 
damages  only  for  the  detaining  of  them,  and  not  for  the  taking,  for 
that  was  lawful;  and  therewith  agrees  Fitzh.  Nat.  Brev.  6o,g,  temp. 
Edw.  I.  "Replevin,"  27 ;  27  Eliz.  3,  88 ;  45  Eliz.  3,  9.  So  in  the  case 
at  bar,  for  not  paying  for  the  wine,  the  defendants  shall  not  be  tres- 
passers, for  the  denying  to  pay  for  it  is  no  trespass,  and  therefore 
they  cannot  be  trespassers  ab  initio. 

(This  famous  old  case  has  been  abundantly  followed  in  later  English  and 
American  decisions.  Perry  v.  Bailey,  94  Me.  50,  46  Atl.  789;  Jewell  v.  Ma- 

CHASE  (2o  ED.) — 26 


402  LAW  OF  TORTS. 

hood,  44  N.  H.  474,  84  Am.  Dec.  90 ;  Ordway  v.  Ferrin,  3  N.  H.  69 ;  Anderson 
v.  Cowles,  72  Conn.  335,  44  Atl.  477,  77  Am.  St.  Rep.  310;  Dumont  v.  Smith, 
4  Denio,  319;  Leavitt  v.  Thompson,  52  N.  Y.  62;  Narehood  v.  Wilhelm,  69 
Pa.  64 ;  Six  Carpenters'  Case  in  Smith's  Leading  Cases,  and  note.  A  better 
reason  for  the  distinction  between  a  license  given  by  law  and  a  license  given 
by  a  party  is  stated  in  Bacon's  Abridgment,  and  approved  in  some  American 
decisions.  This  is  that  "where  the  law  has  given  an  authority,  it  is  reason- 
able that  it  should  make  void  everything  done  by  the  abuse  of  that  authority, 
and  leave  the  abuser  as  if  he  had  done  everything  without  authority.  But 
where  a  man  who  was  under  no  necessity  to  give  an  authority,  does  so,  and 
the  person  receiving  the  authority  abuses  it,  there  is  no  reason  why  the  law 
should  interpose  to  make  void  everything  done  by  such  abuse,  because  it  was 
the  man's  folly  to  trust  another  with  an  authority  who  was  not  fit  to  be 
trusted  therewith."  Allen  v.  Crofoot,  5  Wend.  507 ;  Adams  v.  Rivers,  11 
Barb.  390.  An  even  more  satisfactory  reason  in  regard  to  the  license  given 
by  law  Is  this :  "That  an  officer  or  other  person  acting  by  authority  of  law 
shall  not  be  allowed  to  avail  himself  of  it  as  an  instrument  of  oppression. 
As  the  citizen  is  bound  to  submit  to  it  without  resistance,  and  has  no  op- 
portunity to  make  provisions  or  stipulations  for  his  own  security,  the  exer- 
cise of  the  legal  power  is  made  conditional  upon  pursuing  it  wholly  within 
legal  limits.  The  abuse  is  held  to  be  a  forfeiture  of  the  whole  protection 
which  the  law  gives  to  the  act  which  is  allowed."  Esty  v.  Wilmot,  15  Gray, 
168.  The  rule  is  most  commonly  applied,  it  is  said,  in  cases  of  trespass  to 
real  estate  where  the  original  entry  could  not  be  resisted,  being  Independent 
of  the  will  or  consent  of  the  owner,  and  also  in  the  case  of  officers  serving 
legal  process.  Id. 

The  third  branch  of  the  rule  in  the  Six  Carpenters'  Case,  viz.,  that  "not 
doing  cannot  make  a  party  who  has  authority  or  license  by  law  a  trespasser 
ab  initio,  because  not  doing  is  no  trespass,"  is  controverted  by  some  Ameri- 
can decisions.  Boston  &  M.  R.  Co.  v.  Small,  85  Me.  462,  27  Atl.  349,  35  Am. 
St  Rep.  379,  and  cases  cited ;  cf.  Wright  v.  Marvin,  59  Vt  437,  9  Atl.  601 ; 
Williams  v.  Ives,  25  Conn.  5G8.  At  all  events,  the  rule  must  not  be  applied 
too  broadly.  Thus  if  a  man  who  seizes  the  property  or  arrests  the  person 
of  another  by  legal  process  fails  to  execute  or  return  the  process  in  strict 
accordance  with  its  requirements,  he  is  often  called  a  trespasser  06  initio, 
for  his  whole  justification  fails,  and  he  stands  as  if  he  had  never  had  any  au- 
thority to  take  the  property  or  make  the  arrest.  Brock  v.  Stimson,  10# 
Mass.  520,  11  Am.  Rep.  390.) 


IV.  TRESPASS  BY  JOINT  TENANT. 

(7  Man.  G.  &  S.  441.) 

MURRAY  et  al.  v.  HALL. 

(Court  of  Common  Pleas.     Feb.  14,  1849.) 

TRESPASS  TO  LAND— OUSTER  OF  CO-TENANT. 

Trespass   will   lie  by  one  tenant  in   common  against  another  for  an 
actual  ouster  of  possession. 

Rule  to  show  cause  why  nonsuit  should  not  be  entered. 


TRESPASS  TO   LAND.  403 

Action  of  trespass  brought  by  Murray,  Ash  &  Kennedy  for  break- 
ing and  entering  the  dwelling  house  of  plaintiffs,  and  expelling  them 
therefrom,  and  seizing  and  converting  their  goods.  On  the  trial  be- 
fore Maule,  J.,  it  appeared  that  the  premises  in  question  had  been 
leased  by  defendant,  Hall,  to  the  three  plaintiffs  and  one  Hart  for 
a  coffee-room,  and  that  Hart  surrendered  his  interest  to  Hall,  who 
subsequently,  with  Hart,  forcibly  expelled  from  the  premises  the  per- 
son put  in  charge  thereof  by  plaintiffs,  and  kept  possession.  A  ver- 
dict was  rendered  for  plaintiffs  for  £35  damages.  Defendant,  on 
leave  reserved  at  the  trial,  obtained  a  rule  nisi  to  enter  a  nonsuit. 

COLTMAN,  J.  This  was  an  action  for  breaking  and  entering 
the  plaintiffs'  dwelling-house,  and  expelling  them  therefrom ;  to  which 
the  defendant  pleaded — First,  not  guilty;  secondly,  leave  and  license; 
thirdly,  a  denial  that  the  dwelling-house  was  the  plaintiffs'.  At  the 
trial  before  Maule,  J.,  one  ground  of  defense  was  that  the  defendant 
was  tenant  in  common  of  the  house  with  the  plaintiffs,  and  that, 
therefore,  the  action  was  not  maintainable.  The  learned  judge  told 
the  jury  that,  if  the  evidence  satisfied  them  that  there  had  been 
an  actual  expulsion  of  the  plaintiffs  from  the  house  by  the  defendant, 
their  verdict  ought  to  be  for  the  plaintiffs.  The  jury  found  for  the 
plaintiffs  damages  £35.  The  defendant  afterwards  obtained  a  rule 
to  show  cause  why  a  nonsuit  should  not  be  entered,  (pursuant  to  leave 
given  at  the  trial,)  on  the  ground  that  one  tenant  in  common  cannot 
maintain  trespass  against  another,  even  though  there  has  been  an 
actual  expulsion.  On  showing  cause,  it  was  argued  (before  the  Lord 
Chief  Justice,  and  Justices  Coltman,  Cresswell,  and  V.  Williams,)  that 
this  defense,  even  if  sustainable,  ought  to  have  been  specially  pleaded. 
It  is  unnecessary  to  give  any  opinion  orr  this  point,  for  we  are  of 
opinion  that  the  defense  is  not  sustainable.  The  court  has  felt  some 
difficulty  on  the  question,  by  reason  only  of  the  doubts  expressed 
by  Littledale,  J.,  in  his  judgment  in  Cubitt  v.  Porter,  8  Barn.  &  C.  269. 
That  learned  judge  there  said  that  although,  if  there  has  been  actual 
ouster  by  one  tenant  in  common,  ejectment  will  lie  at  the  suit  of  the 
other,  yet  he  was  not  aware  that  trespass  would  lie ;  for  that,  in  tres- 
pass, the  breaking  and  entering  is  the  gist  of  the  action,  and  the 
expulsion  or  ouster  is  a  mere  aggravation  of  the  trespass;  and  that, 
therefore,  if  the  original  trespass  be  lawful,  trespass  will  not  lie.  It 
appears,  however,  to  us  difficult  to  understand  why  trespass  should 
not  lie,  if  ejectment  (which  includes  trespass)  may  be  maintained 
(as  it  confessedly  may)  on  an  actual  ouster.  And  as  it  has  been  fur- 
ther established  in  the  case  of  Goodtitle  v.  Tombs,  3  Wils.  118,  that 
a  tenant  in  common  may  maintain  an  action  of  trespass  for  mesne 
profits  against  his  companion,  it  appears  to  us  that  there  is  no  real 
foundation  for  the  doubts  suggested.  We  are  therefore  of  the  opin- 


404  LAW  OF  TORTS. 

ion  that  the  direction  of  Maule,  J.,  at  the  trial  was  right,  and  conse- 
quently this  rule  must  be  discharged. 
Rule  discharged. 

(See  also  Filbert  v.  Hoff,  42  Pa.  97,  82  Am.  Dec.  493;  Byam  v.  Blckford, 
140  Mass.  31,  2  N.  B.  687;  Dubois  v.  Beaver,  25  N.  Y.  123,  128,  82  Am.  Dec. 
326.) 


V.  DEFENSES:— LICENSE,  NECESSITY,  ETC. 

(15  Gray,  441,  77  Am.  Dec.  373.) 

GILES  v.   SIMONDS. 
(Supreme  Judicial  Court  of  Massachusetts.    June,  1860.) 

TRESPASS  TO  LAND— SALE  OF  STANDING  TBEES— LICENSE  TO  ENTEB— REVOCA- 
TION. 

A  verbal  contract  for  the  sale  of  standing  trees,  to  be  cut  and  removed 
by  the  purchaser,  gives  an  implied  license  to  enter  for  the  purpose  of 
cutting  and  removing  the  same.  But  such  license  Is  revocable  at  any 
time,  even  after  full  consideration  paid,  except  as  to  an  entry  for  the 
purpose  of  removing  those  trees  cut  before  the  revocation. 

Exceptions  from  Superior  Court,  Franklin  County. 

Action  of  tort  for  breaking  and  entering  plaintiff's  close,  and  cut- 
ting trees  standing  thereon,  which  defendant  justified  under  a  verbal 
contract  of  sale  of  the  trees.  The  consideration  had  been  paid,  and 
part  of  the  trees  had  been  felled  and  removed,  when  plaintiff  revoked 
his  license  to  go  upon  the  land.  The  jury  found  a  verdict  for  de- 
fendant. Plaintiff  alleged  exceptions. 

BIGELOW,  J.  If  the  plaintiff  had  a  right  to  revoke  the  license 
to  enter  upon  his  land,  under  which  the  defendant  seeks  to  justify 
the  acts  of  trespass  alleged  in  the  declaration,  it  is  entirely  clear  that 
the  verdict  rendered  in  favor  of  the  defendant  cannot  stand.  The  de- 
cision of  the  case  turns,  therefore,  on  the  question  whether  an  owner 
of  land,  who  has  entered  into  a  verbal  contract  for  the  sale  of  standing 
wood  and  timber  to  be  cut  and  severed  from  the  freehold  by  the 
vendee,  can,  at  his  pleasure,  revoke  the  license  which  he  thereby 
gives  to  the  purchaser  to  enter  on  his  land,  and  cut  and  carry  away 
the  wood  or  timber  included  in  the  contract.  That  such  a  contract 
is  not  valid  as  passing  an  interest  in  the  land  is  too  well  settled 
to  admit  of  doubt.  It  is  only  an  executory  contract  of  sale,  to  be 
construed  as  conveying  an  interest  in  the  trees  when  they  shall  be 
severed  from  the  freehold,  and  shall  become  converted  into  personal 
property.  Nor  does  the  permission  to  enter  on  the  land,  which  such 
a  contract  expressly  or  by  implication  confers  on  the  vendee,  operate 


TRESPASS  TO   LAND.  405 

to  create  or  vest  in  him  any  estate  or  interest  in  the  premises.  It 
is  only  a  license  or  authority  to  do  certain  acts  on  the  land,  which 
but  for  such  license  or  -authority  would  be  acts  of  trespass.  If  it 
were  otherwise,  if  under  such  a  contract  a  right  were  conferred 
on  the  Vendee  to  enter  on  the  land,  and  then  to  exercise  a  right  or 
privilege  at  his  own  pleasure,  free  from  the  control  of  the  owner  of  the 
land,  during  the  continuance  of  the  contract,  it  would  clearly  confer 
on  the  vendee  a  right  or  interest  in  the  premises,  which  would  con- 
travene the  statute  of  frauds.  Rev.  St.  c.  74,  §  I.  There  can  be  no 
doubt  that  a  valid  license  to  enter  on  land  may  be  given  by  parol. 
But  this  rule  rests  on  the  distinction  that  a  license  is  only  an  authority 
to  do  an  act,  or  series  of  acts,  on  the  land  of  another,  and  passes  no 
estate  or  interest  therein. 

The  nature  and  extent  of  the  right  or  authority  conferred  by  a 
license,  and  how  far  it  is  within  the  power  of  the  licensor  to  modify 
or  revoke  it,  have  given  rise  to  much  discussion  and  many  nice  and 
subtle  distinctions  in  the  books,  as  well  as  conflicting  decisions  in  the 
courts  of  common  law.  Certain  principles,  however,  seem  now  to  be 
well  settled.  If  the  owner  of  land  sells  chattels  or  other  personal 
property  situated  on  his  land,  the  vendee  thereby  obtains  an  implied 
license  to  enter  on  the  premises,  and  take  possession  of  and  remove 
the  property.  In  such  case  the  license  is  coupled  with  and  supported 
by  a  valid  interest  or  title  in  the  property  sold,  and  cannot  be  re- 
voked. Wood  v.  Manley,  u  Adol.  &  E.  34;  Heath  v.  Randall,  4  Cush. 
195.  So,  too,  if  the  owner  of  chattels  or  other  personal  property,  by 
virtue  of  a  contract  with  or  the  permission  of  the  owner  of  land, 
places  his  property  on  the  land,  the  license  to  enter  upon  it,  for  the 
purpose  of  taking  and  removing  the  property,  is  irrevocable.  Patrick 
v.  Colerick,  3  Mees.  &  W.  483 ;  Russell  v.  Richards,  10  Me.  429,  25 
Am.  Dec.  254;  and  Id.,  11  Me.  371,  26  Am.  Dec.  532;  Smith  v.  Ben- 
son, i  Hill,  176.  The  right  of  property  in  the  chattels  draws  after  it 
the  right  of  possession.  The  license  to  enter  on  land  to  obtain  pos- 
session of  them  is  subsidiary  to  this  right  of  property,  which  cannot 
be  enjoyed  if  the  license  be  withdrawn  or  terminated.  This  right 
in  the  chattels  is  not  derived  from  the  license,  but  exists  in  the  owner 
by  virtue  of  a  distinct  and  separate  title,  the  validity  of  which  in  no 
way  depends  on  any  right  or  interest  in  the  land.  But,  with  the  as- 
sent of  the  owner  of  the  land,  the  property  has  been  placed  in  a  sit- 
uation where  it  cannot  be  used  or  enjoyed  except  by  a  license  to  enter 
upon  his  land.  The  continuance  of  this  license  is  therefore  essential 
to  the  enjoyment  of  the  right.  It  would  be  a  manifest  breach  of 
good  faith  to  permit  such  a  license  to  be  revoked.  No  man  should 
be  permitted  to  keep  the  property  of  others  by  inducing  them  to 
place  it  upon  his  land,  and  then  denying  them  the  right  to  enter  to 
regain  its  possession.  A  party  is  therefore  not  permitted  to  with- 


400  LAW   OF   TORTS. 

draw  his  consent,  by  setting  up  his  title  to  the  land,  after  it  has  been 
acted  on  by  others,  and  when  their  rights  will  be  impaired  or  lost 
by  its  withdrawal.  In  like  manner,  and  for  similar  reasons,  a  license 
to  enter  on  land  for  the  purpose  of  removing  trees  or  timber  there- 
from, which  have  been  felled  in  pursuance  of  a  contract  of  sale,  can-- 
not be  recalled.  So  far  as  it  has  been  executed,  the  license  is  irrevoca- 
ble. By  virtue  of  the  contract,  and  with  the  express  or  implied  con- 
sent of  the  owner  of  the  soil,  the  vendee  has  been  induced  to  expend 
his  money  and  services.  The  trees,  so  far  as  they  have  been  severed 
from  the  freehold,  have  been  converted  into  personal  property,  and 
vested  in  the  vendee.  A  revocation  of  the  license  would,  to  the  ex- 
tent to  which  it  had  been  executed,  operate  as  a  fraud  on  the  ven- 
dee, and  deprive  him  of  property  to  which  he  had  become  legally  en- 
titled. Besides,  the  owner  of  the  land  cannot,  by  a  subsequent 
revocation  of  his  license,  render  that  unlawful  which,  with  all  its  in- 
cidents and  necessary  consequences,  was  lawful  at  the  time  it  was 
done,  by  virtue  of  his  own  authority  and  consent.  The  true  distinc- 
tion between  an  executory  verbal  license  to  enter  on  land  under  a 
contract  for  the  sale  of  timber  or  trees  growing  thereon,  and  a  similar 
license  executed,  seems  to  be  this :  The  former  confers  no  vested 
interest  or  property,  no  money  or  labor  is  expended  on  the  faith  of 
it,  and  no  right  or  title  is  impaired  or  lost  by  its  revocation.  If  the 
party  to  whom  it  is  granted  is  injured  by  its  withdrawal,  his  remedy  is 
by  an  action  against  the  licensor  for  a  breach  of  the  contract.  It 
cannot  be  held  to  extend  further,  so  as  to  confer  a  right  to  use 
the  land  of  another  without  his  consent,  because  it  would  thus  con- 
fer, ex  proprio  vigore,  an  interest  in  land,  which  cannot  be  created 
except  by  a  writing.  But  such  a  license  executed,  to  the  extent  to 
which  it  has  been  acted  on,  has  operated  to  induce  the  vendee  to  ex- 
pend money  and  services  on  the  property,  and  thereby  to  convert  it 
into  personal  chattels  which  have  become  vested  in  him.  The  revoca- 
tion of  the  license  in  such  case  would  deprive  the  vendee  of  his  prop- 
erty. It  has  therefore  been  held  that  such  a  license,  while  it  is  ex- 
ecutory, may  be  countermanded,  but  that  when  executed  it  becomes 
irrevocable.  Cook  v.  Stearns,  u  Mass.  533;  Cheever  v.  Pearson,  16 
Pick.  273 ;  Ruggles  v.  Lesure,  24  Pick.  190 ;  Claflin  v.  Carpenter,  4 
Mete.  (Mass.)  580,  38  Am.  Dec.  381 ;  Nettleton  v.  Sikes,  8  Mete. 
(Mass.)  34. 

Applying  these  principles  to  the  case  before  us,  it  is  clear  that  the 
defendant  could  not  justify  the  acts  of  trespass  charged  in  the  decla- 
ration. Before  his  entry  on  the  land  for  the  purpose  of  cutting 
trees,  the  plaintiff  revoked  the  license  which  he  had  given  by  the  ver- 
bal contract  of  sale  under  which  the  defendant  claimed  to  act.  So 
far  as  the  license  was  executory,  it  was  revocable,  and  the  entry 
of  the  defendant  after  its  revocation  was  unlawful.  The  view  which 


TRESPASS  TO   LAND.  401 

we  have  taken  of  the  case  seems  to  render  a  decision  of  the  other 
questions  raised  by  the  exceptions  unnecessary. 
Exceptions  sustained. 

(See  also  Blaisdell  v.  Railroad  Co.,  51  N.  H.  485;  Babcock  v.  Utter,  1 
Abb.  Dec.  27;  Fargis  v.  Walton,  107  N.  Y.  398,  14  N.  E.  303;  Lockbart  v. 
Coir,  54  Wis.  133,  11  N.  W.  254;  Johnson  v.  Skillman,  29  Minn.  95,  12  N. 
W.  149,  43  Am.  Rep.  192 ;  Pursell  v.  Stover,  110  Pa.  43,  20  Atl.  403 ;  Wood  v. 
Leadbitter,  13  Mees.  &  W.  838.) 


(113   Mass.  376,  18  Am.  Rep.  500.) 

PROCTOR  v.  ADAMS  et  al. 
(Supreme  Judicial  Court  of  Massachusetts.     November  Term,  1873.) 

TBESPASS  TO  LAND— ENTRY  TO  SAVE  PROPERTY. 

The  entry  upon  the  land  of  another,  and  removing  a  boat  wrecked 
thereon,  the  property  of  third  persons,  is  not  a  trespass,  if  the  object 
was  to  prevent  the  loss  or  destruction  of  the  boat  by  the  elements,  and 
restore  it  to  the  owner,  and  not  to  remove  it  under  a  claim  of  ownership. 

On   Report  from   Superior  Court. 

Action  of  tort  in  the  nature  of  trespass  quare  clausum  for  entering 
plaintiff's  close  and  carrying  away  a  boat.  The  boat  was  a  wreck 
cast  upon  plaintiff's  beach  between  high  and  low  water  mark,  found 
by  defendants  after  a  severe  storm.  They  drew  it  up  to  high-water 
mark,  but,  not  thinking  it  safe,  subsequently  took  it  away.  They  ad- 
vertised it,  and  it  was  claimed  by  the  owners,  who  paid  them  for  their 
services  and  expenses,  and  took  possession  of  it.  The  court  ruled 
that  these  facts  did  not  constitute  a  defense,  and,  defendants  refusing 
to  go  to  the  jury  on  the  instructions  proposed,  the  judge  reported 
the  case  to  the  supreme  court. 

GRAY,  C.  J.  The  boat,  having  been  cast  ashore  by  the  sea,  was 
a  wreck,  in  the  strictest  legal  sense.  Bl.  Comm.  106;  Chase  v.  Cor- 
coran, 106  Mass.  286,  288.  Neither  the  finders  of  the  boat,  nor  the 
owners  of  the  beach,  nor  the  commonwealth,  had  any  title  to  the 
boat  as  against  its  former  owner.  Body  of  Liberties,  art.  90;  Anc. 
Chart.  21 1 ;  2  Mass.  Col.  Rec.  143;  St.  1814,  c.  170;  Rev.  St.  c. 
57;  Gen.  St.  c.  81 ;  3  Dane,  Abr.  134,  136,  138,  144;  2  Kent,  Comm.  322, 
359.  But  the  owner  of  the  land  on  which  the  boat  was  cast  was  under 
no  duty  to  save  it  for  him.  Sutton  v.  Buck,  2  Taunt.  302,  312. 

If  the  boat,  being  upon  the  land  between  high  and  low  water  mark 
owned  or  occupied  by  the  plaintiff,  was  taken  by  the  defendants, 
claiming  it  as  their  own,  when  it  was  not,  the  plaintiff  had  a  sufficient 
right  of  possession  to  maintain  an  action  against  them.  Barker  v. 
Bates,  13  Pick.  255,  23  Am.  Dec.  678;  Dunwich  v.  Sterry,  I  Barn. 


408  LAW  OF  TORTS. 

&  Adol.  831.  But  if,  as  the  evidence  offered  by  them  tended  to  show, 
the  boat  was  in  danger  of  being  carried  off  by  the  sea,  and  they,  be- 
fore the  plaintiff  had  taken  possession  of  it,  removed  it  for  the  purpose 
of  saving  and  restoring  it  to  its  lawful  owner,  they  were  riot  tres- 
passers. In  such  a  case,  though  they  had  no  permission  from  the 
plaintiff  or  any  other  person,  they  had  an  implied  license  by  law  to 
enter  on  the  beach  to  save  the  property.  It  is  a  very  ancient  rule 
of  the  common  law  that  an  entry  upon  land  to  save  goods  which  are 
in  jeopardy  of  being  lost  or  destroyed  by  water,  fire,  or  any  like  dan- 
ger, is  not  a  trespass.  21  Hen.  VII.  27,  28,  pi.  5 ;  Brooke,  Abr.  "Tres- 
pass," 213 ;  Vin.  Abr.  "Trespass,"  (H,  a,  4,)  pi.  24  ad  fin. ;  Id.  (K,  a,) 
pi.  3.  In  Dunwich  v.  Sterry,  I  Barn.  &  Adol.  831,  a  case  very  like 
this,  Mr.  Justice  Parke  (afterwards  Baron  Parke  and  Lord  Wens- 
leydale)  left  it  to  the  jury  to  say  whether  the  defendant  took  the 
property  for  the  benefit  of  the  owners,  or  under  a  claim  of  his  own, 
and  to  put  the  plaintiffs  to  a  proof  of  their  title.  In  Barker  v.  Bates, 
13  Pick.  255,  23  Am.  Dec.  6/8,  upon  which  the  plaintiff  mainly  relies, 
the  only  right  claimed  by  the  defendants  was  as  finders  of  the  property 
and  for  their  own  benefit.  The  defendants  are  therefore  entitled  to 
a  new  trial.  As  the  answer  was  not  objected  to,  and  the  declaration 
may  be  amended  in  the  court  below,  we  have  not  considered  the  form 
of  the  pleadings. 
New  trial  ordered. 

(See  also  Print  Works  v.  Lawrence,  23  N.  J.  Law,  9;    Id.,  23  N.  J.  Law, 
590,  57  Am.  Dec.  420 ;   New  York  v.  Lord,  18  Wend.  126.) 


(7  Gush.  408,  54  Am.  Dec.  728.) 

CAMPBELL  v.   RACE  (in  part). 

(Supreme  Judicial  Court  of  Massachusetts.    September  Term,  1851.) 

TRESPASS  TO  LAND— NECESSITY— OBSTRUCTIONS  TO  HIGHWAY. 

Where  a  highway  becomes  obstructed  and  impassable  from  temporary 
causes,  a  traveler  has  the  right  to  go  upon  adjoining  lands  and  so  pass 
by  without  being  guilty  of  trespass. 

Exceptions  from  Court  of  Common  Pleas. 

Action  of  trespass  to  land.  Defendant  justified  going  upon  plain- 
tiff's land  under  a  right  of  way  of  necessity  resulting  from  the  im- 
passable state  of  the  adjoining  highway  by  snow-drifts.  The  court 
ruled  that  such  fact  constituted  no  defense.  A  verdict  was  returned 
for  plaintiff.  Defendant  alleged  exceptions. 

BIGELOW,  J.  It  is  not  controverted  by  the  counsel  for  the 
plaintiff  that  the  rule  of  law  is  well  settled  in  England  that,  where  a 
highway  becomes  obstructed  and  impassable  from  temporary  causes, 


TRESPASS  TO  LAND.  409 

a  traveler  has  a  right  to  go  extra  viam  upon  adjoining  lands,  with- 
out being  guilty  of  trespass.  The  rule  is  so  laid  down  in  the  ele- 
mentary books,  (2  Bl.  Comm.  36;  Woolr.  Ways,  50,  51;  3  Cruise, 
Dig.  89 ;  Wellb.  Ways,  38 ;)  and  it  is  fully  supported  by  the  adjudged 
cases,  (Henn's  Case,  W.  Jones,  296;  Osborne  v.  Sture,  3  Salk.  182; 
Pomfret  v.  Ricroft,  I  Saund.  323,  note  3 ;  Absor  v.  French,  2  Show. 

28 ;  Young  v.  ,  I  Ld.  Raym.  725 ;  Taylor  v.  Whitehead,  2 

Doug.  745 ;  Bullard  v.  Harrison,  4  Maule  &  S.  387,  393.) 

Such  being  the  admitted  rule  of  law,  as  settled  by  the  English 
authorities,  it  was  urged  in  behalf  of  the  plaintiff,  in  the  present 
case,  that  it  had  never  been  recognized  or  sustained  by  American  au- 
thors or  cases.  But  we  do  not  find  such  to  be  the  fact.  On  the  con- 
trary, Mr.  Dane,  whose  great  learning  and  familiar  acquaintance  with 
the  principles  of  common  law,  and  their  practical  application  at  an 
early  period  in  this  commonwealth,  entitle  his  opinion  to  very 
great  weight,  adopts  the  rule,  as  declared  in  the  leading  case  of 
Taylor  v.  Whitehead,  ubi  supra,  which  he  says  "is  the  latest  on 
the  point,  and  settles  the  law."  3  Dane,  Abr.  258.  And  so  Chan- 
cellor Kent  states  the  rule.  3  Kent,  Comm.  324.  We  are  not 
aware  of  any  case  in  which  the  question  has  been  distinctly  raised 
and  adjudicated  in  this  country,  but  there  are  several  decisions  in 
New  York  in  which  the  rule  has  been  incidentally  recognized  and 
treated  as  well-settled  law.  Holmes  v.  Seely,  19  Wend.  507;  Wil- 
liams v.  Safford,  7  Barb.  309;  Newkirk  v.  Sabler,  9  Barb.  652.  These 
authorities  would  seem  to  be  quite  sufficient  to  justify  us  in  the  rec- 
ognition of  the  rule.  But  the  rule  itself  is  founded  on  the  established 
principles  of  the  common  law,  and  is  in  accordance  with  the  fixed 
and  uniform  usage  of  the  community.  Indeed,  one  of  the  strongest 
arguments  in  support  of  it  is  that  it  has  always  been  practiced  upon 
and  acquiesced  in,  without  objection,  throughout  the  New  England 
states.  This  accounts  satisfactorily  for  the  absence  of  any  adjudica- 
tion upon  the  question  in  our  courts,  and  is  a  sufficient  answer  to 
the  objection  upon  this  ground  which-  was  urged  upon  us  by  the 
learned  counsel  for  the  plaintiff.  When  a  right  has  long  been  claimed 
and  exercised  without  denial  or  objection,  a  strong  presumption 
is  raised  that  the  right  is  well  founded. 

The  plaintiff's  counsel  is  under  a  misapprehension  in  supposing 
that  the  authorities  in  support  of  the  rule  rest  upon  any  peculiar  or 
exceptional  principle  of  law.  They  are  based  upon  the  familiar  and 
well-settled  doctrine  that  to  justify  or  excuse  an  alleged  trespass  in- 
evitable necessity  or  accident  must  be  shown.  If  a  traveler  in  a  high- 
way, by  unexpected  and  unforeseen  occurrences,  such  as  a  sudden 
flood,  heavy  drifts  of  snow,  or  the  falling  of  a  tree,  is  shut  out  from  the 
traveled  paths,  so  that  he  cannot  reach  his  destination  without  passing 
upon  adjacent  lands,  he  is  certainly  under  a  necessity  to  do  so.  It  is 
essential  to  the  act  to  be  done,  without  which  it  cannot  be  accom- 


410  LAW  OF  TORTS. 

plished.  Serious  inconveniences,,  to  say  the  least,  would  follow,  es- 
pecially in  a  climate  like  our  own,  if  this  right  were  denied  to  those 
who  have  occasion  to  pass  over  the  public  ways.  Not  only  would 
intercourse  and  business  be  sometimes  suspended,  but  life  itself  would 
be  endangered.  In  hilly  and  mountainous  regions,  as  well  as  in 
exposed  places  near  the  sea-coast,  severe  and  unforeseen  storms  not 
unfrequently  overtake  the  traveler,  and  render  highways  suddenly  im- 
passable, so  that  to  advance  or  retreat  by  the  ordinary  path  is  alike 
impossible.  In  such  cases  the  only  escape  is  by  turning  out  of  the 
usually  traveled  way,  and  seeking  an  outlet  over  the  fields  adjoining 
the  highway.  If  a  necessity  is  not  created,  under  such  circumstances, 
sufficient  to  justify  or  excuse  a  traveler,  it  is  difficult  to  imagine  a 
case  which  would  come  within  the  admitted  rule  of  law.  To  hold 
a  party  guilty  of  a  wrongful  invasion  of  another's  rights  for  passing 
over  land  adjacent  to  the  highway,  under  the  pressure  of  such  a 
necessity,  would  be  pushing  individual  rights  of  property  to  an  un- 
reasonable extent,  and  giving  them  a  protection  beyond  that  which 
finds  a  sanction  in  the  rules  of  law.  Such  a  temporary  and  unavoida- 
ble use  of  private  property  must  be  regarded  as  one  of  those  incidental 
burdens  to  which  all  property  in  a  civilized  community  is  subject. 
In  fact,  the  rule  is  sometimes  justified  upon  the  ground  of  public 
convenience  and  necessity.  Highways  being  established  for  public 
service  and  for  the  use  and  benefit  of  the  whole  community,  a  due 
regard  for  the  welfare  of  all  requires  that,  when  temporarily  ob- 
structed, the  right  of  travel  should  not  be  interrupted.  In  the  words 
of  Lord  Mansfield,  "it  is  for  the  general  good  that  people  should  be 
entitled  to  pass  in  another  line."  It  is  a  maxim  of  the  common  law 
that,  where  public  convenience  and  necessity  come  in  conflict  with 
private  right,  the  latter  must  yield  to  the  former.  A  person  traveling 
on  a  highway  is  in  the  exercise  of  a  public,  and  not  a  private,  right. 
If  he  is  compelled,  by  impassable  obstructions,  to  leave  the  way,  and 
go  upon  adjoining  lands,  he  is  still  in  the  exercise  of  the  same  right. 
The  rule  does  not,  therefore,  violate  the  principle  that  individual  con- 
venience must  always  be  held  subordinate  to  private  rights,  but  clearly 
falls  within  that  maxim  which  makes  public  convenience  and  neces- 
sity paramount. 

It  was  urged  in  argument  that  the  effect  of  establishing  this  rule 
of  law  would  be  to  appropriate  private  property  to  public  use  with- 
out providing  any  means  of  compensation  to  the  owner.  If  such  an 
accidental,  occasional,  and  temporary  use  of  land  can  be  regarded  as 
an  appropriation  of  private  property  to  public  use,  entitling  the  owner 
to  compensation,  which  may  well  be  doubted,  still  the  decisive  answer 
to  this  objection  is  quite  obvious.  The  right  to  go  extra  viam,  in 
case  of  temporary  and  impassable  obstructions,  being  one  of  the  legal 
incidents  or  consequences  which  attach  to  a  highway  through  private 
property,  it  must  be  assumed  that  the  right  to  the  use  of  land  adjoin- 


TRESPASS  TO  LAND.  411 

ing  the  road  was  taken  into  consideration,  and  proper  allowance 
made  therefor,  when  the  land  was  originally  appropriated  for  the 
highway,  and  that  the  damages  were  then  estimated  and  fixed  for  the 
private  injury  which  might  thereby  be  occasioned. 

From  what  has  already  been  said,  the  limitations  and  restrictions 
of  the  right  to  go  upon  adjacent  lands  in  case  of  obstructions  in  the 
highway  can  be  readily  inferred.  Having  its  origin  in  necessity,  it 
must  be  limited  by  that  necessity, — cessante  ratione  cessat  ipsa  lex. 
Such  a  right  is  not  to  be  exercised  from  convenience  merely,  nor 
when  by  the  exercise  of  due  care,  after  notice  of  obstructions,  other 
ways  may  be  selected,  and  the  obstructions  avoided.  But  it  is  to  be 
confined  to  those  cases  of  inevitable  necessity  or  unavoidable  acci- 
dent, arising  from  sudden  and  recent  causes,  which  have  occasioned 
temporary  and  impassable  obstructions  in  the  highway.  What  shall 
constitute  such  inevitable  necessity  or  unavoidable  accident  must  de- 
pend upon  the  various  circumstances  attending  each  particular  case. 
The  nature  of  the  obstruction  in  the  road,  the  length  of  time  during 
which  it  has  existed,  the  vicinity  or  distance  of  other  public  ways,  the 
exigencies  of  the  traveler,  are  some  of  the  many  considerations  which 
would  enter  into  the  inquiry,  and  upon  which  it  is  the  exclusive  prov- 
ince of  the  jury  to  pass,  in  order  to  determine  whether  any  necessity 
really  existed  which  would  justify  or  excuse  the  traveler.  In  the 
case  at  bar  this  question  was  wholly  withdrawn  from  the  considera- 
tion of  the  jury  by  the  ruling  of  the  court.  It  will  therefore  be  neces- 
sary to  send  the  case  to  a  new  trial  in  the  court  of  common  pleas. 

Exceptions  sustained. 

(See  also  Morey  v.  Fitzgerald,  56  Vt.  487,  48  Am.  Rep.  811;  Carey  y.  Rae, 
58  CaL  159 ;  Haley  v.  Colcord,  59  N.  H.  7,  47  Am.  Rep.  176.) 


(5  Johns.  352.) 

WILLIAMS    v.    SPENCER. 

(Supreme  Court  of  New  York.     February  Term,  1810.) 

TRESPASS  TO  LAND — BREAKING  OPEN  DOOR  TO  SERVE  PROCESS. 

The  owner  of  a.  house,  renting  the  same,  reserved  an  inner  room,  which 
he  occupied.  A  constable,  having  a  warrant  against  him,  entered  by 
the  outer  door,  which  was  open,  and  broke  open  the  door  of  such  inner 
room  and  arrested  him.  Held,  that  the  constable  was  not  a  trespasser. 

In  error,  on  certiorari. 

Action  of  trespass  quare  clausum  fregit  brought  by  Spencer  against 
Williams.  It  appeared  at  the  trial  before  a  justice  of  the  peace  that 
Spencer  let  out  part  of  his  house,  and  reserved  an  inner  room  for 
himself,  which  he  occupied ;  that  Williams,  who  was  a  constable, 
having  a  warrant  against  Spencer,  the  outer  door  of  the  house  being 


412  LAW  OF  TORTS. 

open,  broke  open  the  door  of  the  inner  room,  and  arrested  him.  The 
justice  gave  judgment  for  plaintiff,  and  defendant  brought  up  the 
case  by  certiorari  and  writ  of  error. 

PER  CURIAM.  There  was  no  protection,  in  this  case,  to  the  door 
of  the  inner  room,  though  occupied  separately  by  the  defendant  in 
error.  The  constable  had  a  right,  therefore,  to  break  the  door.  Lee 
v.  Gansel,  Cowp.  I. 

The  judgment  must  be  reversed. 

(See  also  Hubbard  v.  Mace,  17  Johns.  127;  Hager  v.  Danforth,  20  Barb. 
16;  Coinm.  v.  Tobin,  108  Mass.  426,  11  Am.  Rep.  375.  A  sheriff,  constable,  or 
other  peace  officer  has  no  right  to  break  the  outer  door  of  a  dwelling  house 
in  the  execution  of  civil  process,  and  it  is  deemed  a  breaking  if  he  merely 
lifts  the  latch  of  a  closed  door  and  enters.  Curtis  v.  Hubbard,  4  Hill,  437, 
40  Am.  Dec.  292.) 


(10  Q.  B.  Div.  17.) 

TILLETT   V.   WARD. 

(Court  of  Queen's  Bench.     November  27,  1882.) 

TRESPASS  TO  LAND — CATTLE  ESCAPING  FROM  HIGHWAY. 

Defendant's  ox,  while  being  driven  along  the  highway  in  a  town,  with- 
out any  negligence  on  defendant's  part,  escaped  from  him,  and  entered 
plaintiff's  adjoining  premises  through  an  open  door.  Held,  that  an  ac- 
tion would  not  lie  for  plaintiff's  damages. 

Appeal  by  special  case  from  the  decision  of  the  judge  of  the  county 
court  of  Lincolnshire,  holden  at  Stamford. 

Action  for  injuries  to  goods  in  plaintiff's  shop,  caused  by  defend- 
ant's ox,  which  came  through  the  open  doorway  after  escaping  from 
defendant's  servants,  who  were  driving  it  along  the  public  street  in 
Stamford  in  the  usual  and  customary  manner.  There  was  no  evi- 
dence of  negligence  of  defendant's  servants,  or  that  the  ox  was  vicious, 
or  that  there  was  anything  exceptional  in  its  temper  and  character. 
The  county  court  judge  gave  a  verdict  for  the  amount  claimed,  giv- 
ing the  defendant  leave  to  appeal. 

COLERIDGE,  C.  J.  In  this  action  the  county  court  judge  has 
found  as  a  fact  that  there  was  no  negligence  on  the  part  of  the  drivers 
of  the  ox,  or,  at  all  events,  he  has  not  found  that  there  was  negligence ; 
and,  as  it  lies  on  the  plaintiff  to  make  out  his  case,  the  charge  of  negli- 
gence, so  far  as  it  has  any  bearing  on  the  matter,  must  be  taken  to 
have  failed. 

Now,  it  is  clear,  as  a  general  rule,  that  the  owner  of  cattle  and 
sheep  is  bound  to  keep  them  from  trespassing  on  his  neighbor's  land, 
and,  if  they  so  trespass,  an  action  for  damages  may  be  brought  against 
him,  irrespective  of  whether  the  trespass  was  or  was  not  the  result 


TRESPASS  TO   LAND.  413 

of  his  negligence.  It  is  also  tolerably  clear  that  where  both  parties 
are  upon  the  highway,  where  each  of  them  has  a  right  to  be,  and 
one  of  them  is  injured  by  the  trespass  of  an  animal  belonging  to  the 
other,  he  must,  in  order  to  maintain  his  action,  show  that  the  tres- 
pass was  owing  to  the  negligence  of  the  other  or  of  his  servant.  It 
is  also  clear  that,  where  a  man  is  injured  by  a  fierce  or  vicious  animal 
belonging  to  another,  prima  facie  no  action  can  be  brought  without 
proof  that  the  owner  of  the  animal  knew  of  its  mischievous  tendencies. 
In  the  present  case,  the  trespass,  if  there  was  any,  was  committed 
off  the  highway  upon  the  plaintiff's  close,  which  immediately  ad- 
joined the  highway,  by  an  animal  belonging  to  the  defendant,  which 
was  being  driven  on  the  highway.  No  negligence  is  proved,  and  it 
would  seem  to  follow,  from  the  law  which  I  have  previously  stated, 
that  the  defendant  is  not  responsible.  We  find  it  established,  as 
an  exception  upon  the  general  law  of  trespass,  that,  where  cattle  tres- 
pass upon  unfenced  land  immediately  adjoining  a  highway,  the  owner 
of  the  land  must  bear  the  loss.  This  is  shown  by  the  judgment  of 
Bramwell,  B.,  in  Goodwyn  v.  Cheveley,  4  H.  &  N.  631.  That  learned 
judge  goes  into  the  question  whether  a  reasonable  time  had  or  had  not 
elapsed  for  the  removal  of  cattle  who  had  trespassed  under  similar 
circumstances,  and  this  question  would  not  have  arisen  if  a  mere 
momentary  trespass  had  been  by  itself  actionable.  There  is  also  the 
statement  of  Blackburn,  J.,  in  Fletcher  v.  Rylands,  L.  R.  I  Exch. 
265,  that  persons  who  have  property  adjacent  to  a  highway  may  be 
taken  to  hold  it  subject  to  the  risk  of  injury  from  inevitable  risk.  I 
could  not,  therefore,  if  I  were  disposed,  question  law  laid  down  by 
such  eminent  authorities ;  but  I  quite  concur  in  their  view,  and  I 
see  no  distinction  for  this  purpose  between  a  field  in  the  country  and 
a  street  in  a  market  town.  The  accident  to  the  plaintiff  was  one 
of  the  necessary  and  inevitable  risks  which  arise  from  driving  cattle 
in  the  streets  in  or  out  of  town.  No  cause  of  action  is  shown,  and 
the  judgment  of  the  county  court  judge  must  be  reversed. 

STEPHEN,  J.  I  am  of  the  same  opinion.  As  I  understand  the 
law,  when  a  man  has  placed  his  cattle  in  a  field,  it  is  his  duty  to  keep 
them  from  trespassing  on  the  land  of  his  neighbors;  but  while  he  is 
driving  them  upon  a  highway  he  is  not  responsible,  without  proof 
of  negligence  on  his  part,  for  any  injury  they  may  do  upon  the  high- 
way, for  they  cannot  then  be  said  to  be  trespassing.  The  case  of 
Goodwyn  v.  Cheveley,  4  H.  &  N.  631,  seems  to  me  to  establish  a 
further  exception,  that  the  owner  of  the  cattle  is  not  responsible 
without  negligence  when  the  injury  is  done  to  property  adjoining  the 
highway, — an  exception  which  is  absolutely  necessary  for  the  con- 
duct of  the  common  affairs  of  life.  We  have  been  invited  to  limit  this 
exception  to  the  case  of  high  roads  adjoining  fields  in  the  country, 
but  I  am  very  unwilling  to  multiply  exceptions,  and  I  can  see  no  solid 


414  LAW  OF'  TORTS. 

distinction  between  the  case  of  an  animal  straying  into  a  field  which 
is  unfenced  or  into  an  open  shop  in  a  town.  I  think  the  rule  to  be 
gathered  from  Goodwyn  v.  Cheveley  a  very  reasonable  one,  for  other- 
wise I  cannot  see  how  we  could  limit  the  liability  of  the  owner  of 
cattle  for  any  sort  of  injury  which  could  be  traced  to  them. 
Judgment  for  defendant. 

(Where  cattle  driven  along  a  highway  stray  from  it  in  sight  of  the  person 
In  charge  of  them,  and  pass,  against  his  will,  onto  uninclosed  land  adjoining 
the  highway,  and  he  makes  fresh  pursuit  to  bring  them  back,  the  owner 
ought  not  to  be  chargeable  for  this  involuntary  trespass.  Per  Beardsley,  J., 
in  Tonawanda  R.  Co.  v.  Hunger,  5  Denio,  255,  49  Am.  Dec.  239.  To  the 
same  effect  are  Hartford  v.  Brady,  114  Mass.  466,  19  Am.  Rep.  377;  Cool 
v.  Crommet,  13  Me.  250;  Bush  v.  Brainard,  1  Cow.  78,  13  Am.  Dec.  513,  and 
note.) 


(37  N.  H.  331,  72  Am.  Dec.  332.) 

LAWRENCE  v.  COMBS. 
(Supreme  Judicial  Court  of  New  Hampshire.     July  Term,  1858.) 

TRESPASS  TO  LAND— ADJOINING  TENANTS — OBLIGATION  TO  FENCE. 

Trespass  will  not  lie  by  the  tenant  of  a  close  against  an  adjoining  pro- 
prietor for  damage  done  by  cattle  of  a  third  person,  which,  straying  upon 
the  highway,  enter  defendant's  lands,  and  from  there  pass  upon  plain- 
tiff's land,  through  a  defect  in  that  portion  of  the  division  fence  which 
defendant  was  by  law  bound  to  keep  in  repair.  Rev.  St.  N.  H.  c.  136,  §  1. 

On   report   of  referee. 

Action  on  the  case  for  negligence.  It  appeared  on  trial  before  a 
referee  that  cattle  of  a  third  person  straying  on  the  highway  entered 
upon  defendant's  land,  and  therefrom  passed  upon  plaintiff's  adjoin- 
ing land  through  a  defective  fence  at  a  point  where  defendant  was 
by  law  bound  to  build  and  keep  in  repair  the  division  fence.  The 
referee. reported  the  facts  for  the  judgment  of  the  court. 

EASTMAN,  J.  At  common  law,  a  tenant  or  owner  was  not 
obliged  to  fence  against  an  adjoining  owner  or  occupier,  except  by 
prescription,  but  he  was  to  keep  his  cattle  on  his  own  land  at  his  peril ; 
and,  if  they  escaped,  they  might  be  taken  on  whatever  land  they  were 
found  damage  feasant,  or  the  owner  was  liable  to  an  action  of  tres- 
pass by  the  party  injured.  And  where  there  was  no  prescription,  but 
the  tenant  had  made  an  agreement  to  fence,  he  could  not  be  com- 
pelled to  carry  out  his  agreement  and  make  the  fence ;  and  the  party 
injured  by  the  breach  of  the  agreement  had  no  remedy  but  by  an 
action  on  the  agreement.  Nowel  v.  Smith,  Cro.  Eliz.  709;  Rust  v. 
Low,  6  Mass.  94 ;  Avery  v.  Maxwell,  4  N.  H.  36 ;  Deyo  v.  Stewart,  4 
Denio,  101 ;  3  Kent,  Comm.  438;  Dean  v.  Railroad,  22  N.  H.  317; 
Glidden  v.  Towle,  31  N.  H.  168. 


TRESPASS  TO  LAND.  415 

In  case  of  a  prescription  to  fence,  the  tenant  could  be  compelled 
to  fence  by  the  writ  of  curia  claudenda,  sued  out  by  the  tenant  of  the 
adjoining  close,  who  could  also  recover  damages  by  that  writ.  Fitzh. 
Nat.  Brev.  "Curia  Claudenda,"  297 ;  Rust  v.  Low,  6  Mass.  94 ;  Glid- 
den  v.  Towle,  31  N.  H.  168.  But,  by  statute,  the  owners  of  adjoining 
lands,  under  improvement,  are  required  to  make  and  repair  the  par- 
tition fences  between  them.  Rev.  St.  c.  136,  §  I.  And  after  the  fence 
has  been  divided,  the  owner  of  a  close  can  sustain  no  action  for 
damages  done  by  horses  or  cattle  breaking  into  his  close,  through 
defects  in  the  fence  which  he  was  bound  to  make  and  repair,  if  they 
were  rightfully  on  the  adjoining  land.  Avery  v.  Maxwell,  4  N.  H. 
36;  York  v.  Davis,  II  N.  H.  241;  Page  v.  Olcott,  13  N.  H.  399. 
Where  there  are  adjoining  closes,  with  an  undivided  partition  fence, 
which  each  owner  is  bound  to  keep  in  repair,  each  is  required  to 
keep  his  cattle  on  his  own  land  at  his  peril.  Tewksbury  v.  Bucklin, 
7  N.  H.  518;  Avery  v.  Maxwell,  4  N.  H.  36;  Thayer  v.  Arnold,  4 
Mete.  (Mass.)  589;  Little  v.  Lathrop,  5  Greenl.  356. 

At  common  law  the  tenant  of  a  close  who  was  obliged  by  prescrip- 
tion to  fence  was  not  required  to  do  it  against  any  cattle  except  those 
which  were  rightfully  in  the  adjoining  close.  Salkwell  v.  Milwarde, 
26  Hen.  VI.  c.  23 ;  10  Edw.  IV.  c.  7 ;  Fitzh.  Nat.  Brev.  "Curia  Claud- 
enda," 1,2;  Rust  v.  Low,  6  Mass.  99,  iod;  3  Kent,  Comm.  438.  And 
the  same  rule  has  been  held  to  prevail  where  statutes  have  been 
adopted  regulating  the  rights  and  duties  of  adjoining  owners  in  re- 
gard to  fences.  In  Rust  v.  Low,  already  cited,  which  is  a  leading 
American  case  upon  the  question,  the  point  was  distinctly  decided  that 
the  tenant  of  a  close  is  not  obliged  to  fence  except  against  cattle  which 
are  rightfully  upon  the  adjoining  land.  In  Avery  v.  Maxwell,  4  N.  H. 
37,  Chief  Justice  Richardson  says  that  "it  is  well  settled  that  the  owner 
of  a  close  is  only  bound  to  fence  against  creatures  which  are  right- 
fully on  the  adjoining  land."  And  in  Holladay  v.  Marsh,  3  Wend. 
147,  20  Am.  Dec.  678,  Chief  Justice  Savage  also  says  that  "it  is  cer- 
tainly well  settled  that  a  man  is  not  obliged  to  fence  against  any  cat- 
tle but  such  as  may  be  rightfully  upon  the  adjoining  close."  This 
doctrine  is  sustained  by  many  authorities,  among  which  may  be  cited 
Wells  v.  Howell,  19  Johns.  385 ;  Stackpole  v.  Healy,  16  Mass.  38,  8 
Am.  Dec.  121;  Lord  v.  Wormwood,  29  Me.  282,  i  Am.  Rep.  586; 
Hurd  v.  Railroad  Co.,  25  Vt.  122 ;  Dovaston  v.  Payne,  2  H.  Bl.  527 ; 
Cornwall  v.  Railroad,  28  N.  H.  167. 

From  the  declaration  of  the  plaintiff,  it  appears  that  he  and  the 
defendant  were  owners  of  adjoining  closes ;  that  the  fence  between 
them  had  been  divided ;  and  that  the  defendant's  portion  of  the  fence 
was  out  of  repair.  Upon  this  state  of  facts,  and  according  to  the 
principles  stated,  there  can  be  no  doubt  that  the  defendant  would  be 
liable,  had  the  cattle  that  committed  the  trespass  upon  the  plaintiff's 
land  been  rightfully  in  the  close  of  the  defendant,  for  they  went  into 


416  LAW  OF  TORTS. 

the  plaintiff's  close  over  that  part  of  the  fence  which  the  defendant 
was  bound  to  maintain.  But  the  cattle  that  committed  the  trespass 
were  not  the  property  of  the  defendant,  nor  were  they  upon  his  land 
by  his  permission;  but  they  belonged  to  third  persons,  and  strayed 
from  the  highway — where  they  do  not  appear  to  have  been  for  any 
legitimate  purpose — into  the  defendant's  close,  and  thence  came  upon 
the  plaintiff's  land  and  did  the  damage.  Both  the  plaintiff  and  de- 
fendant could  maintain  their  actions  against  the  owners  of  the  cattle 
for  the  trespasses  committed;  for,  not  being  rightfully  in  the  high- 
way, it  is  immaterial  what  the  situation  of  their  fences  were.  They 
were  not  obliged  to  fence  against  wrong-doers.  The  authorities  cit- 
ed settled  this  position. 

[The  opinion  concludes  with  an  examination  of  the  provisions  of 
the  New  Hampshire  statute  as  to  division  fences,  (Rev.  St.  c.  136,) 
which,  however,  it  is  held,  do  not  change  the  result.] 

Our  conclusion  is  that  there  should  be, 

Judgment  on  the  report  for  the  defendant. 

(See  also  Tonawanda  R.  Co.  v.  Munger,  5  Denio,  255,  49  Am.  Dec.  239 ; 
Thayer  v.  Arnold,  4  Mete.  [Mass.]  589;  Knox  v.  Tucker,  48  Me.  373,  77  Am. 
Dec.  233;  Scott  v.  Grover,  56  Vt  499,  48  Am.  Rep.  814.  About  half  of  the 
states  of  this  country  hold  the  common-law  rule  in  regard  to  fences  appli- 
cable, in  the  absence  of  any  statute  on  the  subject,  while  the  other  half  hold 
that  an  owner  who  has  not  fenced  his  land  cannot  recover  for  a  trespass 
by  his  neighbor's  cattle.  12  Am.  &  Eng.  Enc.  of  Law  [2d  Ed.]  1040-1044. 
It  is  a  generally  accepted  doctrine  that  when  an  obligation  to  fence  is  cre- 
ated by  statute,  this  obligation  only  applies  to  such  cattle  as  are  lawfully 
on  the  adjoining  premises.  Id.  1058,  1084.  By  some  statutes,  however,  a 
different  rule  is  established  in  regard  to  railroad  fences.  Dayton  v.  New 
York,  L.  E.  &  W.  R.  Co.,  81  Hun,  284,  30  N.  Y.  Supp.  783.) 


NUISANCE.  417 


NUISANCE. 


I.  WHAT    CONSTITUTES    A    NUISANCE— PRESCRIPTIVE 
RIGHT  TO  MAINTAIN  A  NUISANCE— INJUNC- 
TION TO  RESTRAIN. 

t 

(63  N.  Y.  568,  20  Am.  Rep.  567.) 

CAMPBELL  et  al.  v.  SEAMAN  (in  part). 

(Court  of  Appeals  of  New  York.    Jan.  21,  1876.) 

1.  NUISANCE— WHAT  CONSTITUTES. 

The  unreasonable,  unwarrantable,  or  unlawful  use  of  one's  own  prop- 
erty, producing  material  annoyance,  inconvenience,  discomfort,  or  hurt 
to  his  neighbor,  constitutes  a  nuisance. 

2.  SAME— BRICK-BUBNING. 

The  burning  of  brick  in  a  kiln,  which  produces  noxious  gases,  injuring 
another's  property,  is  a  nuisance,  though  brick -burning  is  a  useful  and 
necessary  industry. 

3.  INJUNCTION— WHEN  GRANTED. 

The  writ  of  injunction  is  not  a  matter  of  grace,  but  of  right,  in  a  proper 
case,  and  will  be  granted  to  restrain  irreparable  injury,  whether  it  be 
to  the  enjoyment  of  the  necessities  or  the  luxuries  of  life. 

4.  SAME. 

Tlie  destruction  of  ornamental  and  useful  trees  and  vines  by  the  vapors 
and  gases  from  a  brick-kiln  is  such  irreparable  injury  as  a  court  of 
equity  will  enjoin. 

5.  NUISANCE— PRESCRIPTIVE  RIGHT  TO  MAINTAIN. 

A  person  cannot,  by  erecting  a  nuisance  upon  his  land  adjoining  vacant 
land  owned  by  another,  control  or  lessen  the  latter's  use  of  the  laud,  unless 
he  can  acquire  such  right  by  prescription. 

6.  SAME. 

Where  the  injury  to  shrubbery  on  plaintiff's  premises  is  caused  by  the 
burning  of  anthracite  coal  in  a  brick-kiln  on  adjoining  premises  by  de- 
fendant, a  prescriptive  right  to  continue  the  nuisance  must  be  based 
upon  20  years'  actual  use  of  such  coal,  and  not  20  years'  use  of  the  kiln. 

Appeal  from  Supreme  Court,  General  Term,  Third  Department. 

Action  by  Samuel  B.  Campbell  and  others  against  Nathan  N.  Sea- 
man to  recover  damages  from  an  alleged  nuisance  and  to  restrain  the 
continuance  thereof.  The  nuisance  consisted  in  the  burning  of  brick 
by  anthracite  coal  on  defendant's  premises,  which  killed  the  foliage, 
trees,  and  shrubbery  on  plaintiffs'  adjoining  premises.  The  referee 
by  whom  the  case  was  tried  found  for  plaintiffs,  and  the  general 
term  affirmed  the  judgment  entered  upon  his  report.  From  the  judg- 
ment of  the  general  term  defendant  appealed. 
CHASE  (2o  ED.) — 27 


418  LAW  OF  TORTS. 

EARL,  J.  The  plaintiffs  owned  about  40  acres  of  land,  situate  in 
the  village  of  Castleton,  on  the  east  bank  of  the  Hudson  river,  and 
had  owned  it  since  about  1849.  During  the  years  1857,  1858,  and 
1859  they  built  upon  it  an  expensive  dwelling-house  ;  and  during  those 
years,  and  before  and  since,  they  improved  the  land  by  grading  and 
terracing,  building  roads  and  walks  through  the  same,  and  planting 
trees  and  shrubs,  both  ornamental  and  useful.  The  defendant  had  for 
some  years  owned  adjoining  .lands,  which  he  had  used  as  a  brick- 
yard. The  brick-yard  is  southerly  of  plaintiffs'  dwelling-house  about 
1,320  feet,  and  southerly  of  their  woods  about  567  feet.  In  burning 
bricks  defendant  had  made  use  of  anthracite  coal.  During  the  burn- 
ing of  a  kiln  sulphuric  acid  gas  is  generated,  which  is  destructive  to 
some  kinds  of  trees  and  vines.  The  evidence  shows,  and  the  referee 
found,  that  gas  coming  from  defendant's  kilns  had,  during  the  years 
1869  and  1870,  killed  the  foliage  on  plaintiffs'  white  and  yellow  pines 
and  Norway  spruce,  and  had,  after  repeated  attacks,  killed  and  de- 
stroyed from  loo  to  150  valuable  pine  and  spruce  trees,  and  had  in- 
jured their  grape-vines  and  plum  trees,  and  he  estimated  plaintiffs' 
damages  from  the  gas  during  those  years  at  $500.  This  gas  did  not 
continually  escape  during  the  burning  of  a  kiln,  but  only  during  the 
last  two  days,  and  was  carried  into  and  over  plaintiffs'  land  only  when 
the  wind  was  from  the  south. 

It  is  a  general  rule  that  every  person  may  exercise  exclusive  do- 
minion over  his  own  property,  and  subject  it  to  such  uses  as  will  best 
subserve  his  private  interests.  Generally,  no  other  person  can  say 
how  he  shall  use  or  what  he  shall  do  with  his  property.  But  this 
general  right  of  property  has  its  exceptions  and  qualifications.  Sic 
utere  tuo  ut  alienum  non  laedas  is  an  old  maxim  which  has  a  broad 
application.  It  does  not  mean  that  one  must  never  use  his  own  so 
as  to  do  any  injury  to  his  neighbor  or  his  property.  Such  a  rule 
could  not  be  enforced  in  civilized  society.  Persons  living  in  organized 
communities  must  suffer  some  damage,  annoyance,  and  inconvenience 
from  each  other.  For  these  they  are  compensated  by  all  the  ad- 
vantages of  civilized  society.  If  one  lives  in  the  city,  he  must  expect 
to  suffer  the  dirt,  smoke,  noisome  odors,  noise,  and  confusion  incident 
to  city  life.  As  Lord  Justice  James  beautifully  said,  in  Salvin  v.  Coal 
Co.,  L.  R.  9  Ch.  App.  705 :  "If  some  picturesque  haven  opens  its 
arms  to  invite  the  commerce  of  the  world,  it  is  not  for  this  court  to 
forbid  the  embrace,  although  the  fruit  of  it  should  be  the  sights  and 
sounds  and  smells  of  a  common  seaport  and  ship-building  town, 
which  would  drive  the  dryads  and  their  masters  from  their  ancieni 
solitudes." 

But  every  person  is  bound  to  make  a  reasonable  use  of  his  prop- 
erty, so  as  to  occasion  no  unnecessary  damage  or  annoyance  to  his 
neighbor.  If  he  make  an  unreasonable,  unwarrantable,  or  unlawful 
use  of  it,  so  as  to  produce  material  annoyance,  inconvenience,  dis- 


NUISANCE.  419 

comfort,  or  hurt  to  his  neighbor,  he  will  be  guilty  of  a  nuisance  to 
his  neighbor,  and  the  law  will  hold  him  responsible  for  the  conse- 
quent damage.  As  to  what  is  a  reasonable  use  of  one's  own  prop- 
erty cannot  be  defined  by  any  certain  general  rules,  but  must  de- 
pend upon  the  circumstances  of  each  case.  A  use  of  property  in  one 
locality,  and  under  some  circumstances,  may  be  lawful  and  reasonable, 
which,  under  other  circumstances,  would  be  unlawful,  unreasonable, 
and  a  nuisance.  To  constitute  a  nuisance,  the  use  must  be  such  as 
to  produce  a  tangible  and  appreciable  injury  to  neighboring  property, 
or  such  as  to  render  its  enjoyment  specially  uncomfortable  or  incon- 
venient. 

Within  the  rules  thus  referred  to,  that  defendant's  brick-burning 
was  a  nuisance  to  plaintiffs  cannot  be  doubted.  Numerous  cases 
might  be  cited,  but  it  will  be  sufficient  to  cite  mainly  those  where  the 
precise  question  was  involved  in  reference  to  brick-burning. 

The  earliest  case  is  that  of  Duke  of  Grafton  v.  Milliard,  decided  in 
1736,  not  reported,  but  referred  to  in  Attorney  General  v.  Cleaver, 
18  Ves.  211.  Chancellor  Eldon  there  says  that  the  court  held  in  that 
case  that  "the  manufacture  of  bricks,  though  near  the  habitations  of 
men,  if  carried  on  for  the  purpose  of  making  habitations  for  them,  is 
not  a  public  nuisance."  By  looking  at  that  case,  as  found  in  a  note 
to  Walter  v.  Selfe,  4  Eng.  Law  &  Eq.  18,  it  will  be  seen  that  no  such 
decision  was  made  in  that  case,  and  that  no  such  language  was  used 
therein.  A  temporary  injunction  had  been  granted  in  the  first  in- 
stance, restraining  brick-burning,  but  it  was  dissolved  upon  the  de- 
fendant's showing  that  it  would  really  produce  no  annoyance  or  in- 
jury to  the  plaintiff. 

In  Donald  v.  Humphrey,  14  F.  (Sc.)  1206,  the  plaintiff  brought  an 
action  to  restrain  brick-burning,  and  insisted  that  the  business  was  per 
se  a  nuisance,  and  should  be  restrained  without  proof  of  actual  in- 
jury, but  the  court  held  that  the  business  of  burning  brick  was  a  law- 
ful business,  and  not  per  se  a  nuisance,  but  that  the  question  as  to 
whether  it  was  a  nuisance  or  not  was  one  of  fact,  to  be  determined 
by  the  circumstances  of  each  case,  and  refused  an  injunction  without 
proof  that  the  business  was  so  conducted  as  to  be  a  nuisance  to  the 
plaintiff. 

In  the  case  of  Walter  v.  Selfe,  supra,  the  defendants  were  enjoined 
from  burning  bricks  in  the  vicinity  of  the  plaintiffs'  premises  so  as 
to  occasion  damage  or  annoyance  to  the  plaintiffs,  or  injury  or  dam- 
age to  the  buildings  thereon  standing,  or  shrubberies  or  plantation, 
named  in  the  bill. 

In  Pollock  v.  Lester,  n  Hare,  266,  the  defendant  was  making  prep- 
arations to  burn  bricks  near  a  lunatic  asylum  of  which  plaintiff  was 
proprietor,  and  plaintiff  brought  his  bill  praying  an  injunction  to  re- 
strain the  defendant,  alleging  in  his  bill  that  the  smoke  and  vapor 
arising  from  the  brick-burning  would  be  injurious  to  his  patients,  and 


420  LAW  OF  TORTS. 

cause  them  to  leave  his  asylum,  and  would  also  injure  the  trees, 
shrubs,  and  plants  thereon  growing ;  and  the  injunction  was  granted. 
This  was  done,  it  will  be  seen,  merely  upon  the  apprehension  of  dam- 
age, and  before  any  was  actually  suffered. 

After  the  decision  of  this  case,  Hole  v.  Barlow,  4  C.  B.  (N.  S.)  336, 
was  decided.  That  was  an  action  for  a  nuisance  arising  from  the 
burning  of  bricks  on  defendant's  own  land  near  to  the  plaintiff's 
dwelling-house,  and  the  judge  at  the  trial  told  the  jury  that  no  action 
lies  for  the  reasonable  use  of  a  lawful  trade  in  a  convenient  and  prop- 
er place,  even  though  some  one  may  suffer  inconvenience  from  its  be- 
ing carried  on,  and  he  left  two  questions  to  the  jury — First,  "Was 
the  place  in  which  the  bricks  were  burned  a  proper  and  convenient 
place  for  the  purpose?"  Secondly,  if  they  thought  the  place  was  not 
a  proper  place  for  the  purpose,  then  "was  the  nuisance  such  as  to 
make  the  enjoyment  of  life  and  property  uncomfortable?"  It  was 
held  that  there  was  no  misdirection.  That  case,  which  was  in  con- 
flict with  prior  authorities,  has  since  been  overruled  in  Beardmore  v. 
Tredwell,  31  Law  J.  Ch.  892;  Bamford  v.  Turnley,  31  Law  J.  Q.  B. 
286;  Cavey  v.  Ledbitter,  13  C.  B.  (N.  S.)  470;  Bareham  v.  Hall, 
22  Law  T.  (N.  S.)  116;  Roberts  v.  Clarke,  18  Law  T.  (N.  S.)  49; 
Luscombe  v.  Steer,  17  Law  T.  (N.  S.)  229. 

In  Beardmore  v.  Tredwell  the  court  granted  an  injunction  re- 
straining the  burning  of  bricks  within  650  yards  of  the  plaintiff's 
dwelling,  holding  that  the  burning  of  bricks  within  350  yards  of  the 
plaintiff's  residence  was  a  nuisance,  although  the  bricks  were  to  be 
used  in  the  erection  of  government  fortifications.  Vice-Chancellor 
Stuart  says:  "Upon  the  facts  of  the  present  case,  notwithstanding 
the  contradictory  evidence,  my  mind  is  satisfied  that  there  has  been 
an  actual  and  positive  injury  to  the  plaintiff;  that  the  comfort  and 
enjoyment  of  his  mansion-house  are  injured ;  that  the  trees  planted 
and  standing  and  growing  for  ornament  have  been,  in  some  cases, 
entirely  destroyed,  and  in  many  cases  injured." 

In  Bamford  v.  Turnley,  Cockburn,  C.  J.,  before  whom  the  case  was 
tried,  followed  Hole  v.  Barlow,  and  charged  the  jury  that  if  they 
thought  the  spot  was  convenient  and  proper,  and  that  the  use  by 
the  defendant  of  his  premises  was,  under  the  circumstances,  a  rea- 
sonable use  of  his  own  land,  he  would  be  entitled  to  a  verdict.  The 
jury  found  for  the  defendant,  but  upon  the  hearing  in  the  exchequer 
chamber  it  was  held  that  the  instructions  were  erroneous,  and  that  it 
was  no  answer,  in  an  action  for  nuisance  creating  actual  annoyance 
and  discomfort  in  the  enjoyment  of  neighboring  property,  that  the 
injury  resulted  from  a  reasonable  use  of  the  property,  and  that  the 
act  was  done  in  a  convenient  place,  nor  that  the  same  business  had 
been  carried  on  in  the  same  locality  for  17  years.  The  doctrine  of 
Hole  v.  Barlow  was  distinctly  repudiated,  and  that  case  was  in  terms 
overruled. 


NUISANCE.  421 

In  Cavey  v.  Ledbitter,  an  action  for  a  nuisance  caused  by  brick- 
burning,  the  judge  at  the  trial  left  it  to  the  jury,  in  substance,  to  say 
whether  the  acts  of  the  defendant  rendered  the  plaintiff's  residence 
substantially  uncomfortable,  and  whether  his  shrubs  and  fruit-trees 
had  been  thereby  injured;  and  he  refused  to  ask  them  whether  the 
bricks  had  been  burned  in  a  convenient  place,  and  it  was  held  that 
there  was  no  misdirection. 

In  Bareham  v.  Hall  a  bill  was  filed  for  an  injunction  to  restrain  the 
defendant  from  using  a  brick-kiln  in  such  a  way  as  to  be  a  nuisance 
to  the  property  of  plaintiff,  or  to  plaintiff  and  his  family.  There,  as 
here,  the  damage  and  annoyance  were  suffered  only  when  the  wind 
blew  from  the  direction  of  the  kiln;  and  Vice-Chancellor  Stuart 
said  "that,  prima  facie,  a  brick-kiln  built  within  TOO  yards  in  front  of 
a  mansion-house  would  be  a  nuisance,  unless  the  process  used  for  burn- 
ing the  bricks  was  one  of  an  unusual  kind." 

In  this  country,  so  far  as  I  can  ascertain,  the  question  of  nuisance 
from  brick-burning  has  rarely  been  before  the  courts.  The  only  case 
to  which  our  attention  has  been  called  is  Huckenstine's  Appeal,  70 
Pa.  102,  10  Am.  Rep.  669.  In  that  case  Agnew,  J.,  says:  "Brick- 
making  is  a  useful  and  necessary  employment,  and  must  be  pursued 
near  to  towns  and  cities  where  bricks  are  chiefly  used.  Brick- 
burning,  an  essential  part  of  the  business,  is  not  a  nuisance  per  se. 
Attorney  General  v.  Cleaver,  18  Ves.  219.  It,  as  many  useful  em- 
ployments do,  may  produce  some  discomfort,  and  even  some  injury, 
to  those  near  by,  but  it  does  not  follow  that  a  chancellor  would  en- 
join therefor."  He  then  goes  on  to  say  that  the  aid  of  an  injunction 
is  not  matter  of  right,  but  of  grace ;  and  concludes  that  there  were  so 
many  similar  nuisances  in  the  locality  that  it  was  not  clear  that  this 
nuisance  increased  the  discomfort  from  them,  and  that  it  was  doubt- 
ful whether  the  plaintiff  had  suffered  any  material  damage  from  the 
acts,  and  therefore  held  that  an  injunction  ought  not  to  issue,  and 
that  the  plaintiff  should  be  left  to  his  remedy  at  law.  In  the  following 
analogous  cases,  useful  industries,  which  produced  smoke  or  noxious 
gases  or  vapors  or  odors,  were  declared  nuisances :  Catlin  v.  Val- 
entine, 9  Paige,  575,  38  Am.  Dec.  567;  Peck  v.  Elder,  3  Sandf.  129; 
Taylor  v.  People,  6  Parker,  Cr.  R.  352 ;  Davis  v.  Lambertson,  56  Barb 
480;  Hutchins  v.  Smith,  63  Barb.  251;  Whitney  v.  Bartholomew,  21 
Conn.  213;  Cooper  v.  Randall,  53  111.  24;  Rex  v.  White,  I  Burrows, 
337;  Cooke  v.  Forbes,  L.  R.  5  Eq.  166;  Sampson  v.  Smith,  8  Sim. 
272  ;  Tipping  v.  Smelting  Co.,  4  Best  &  S.  608 ;  Crump  v.  Lambert,  L. 
R.  3  Eq.  409 ;  Pointer  v.  Gill,  2  Rolle,  Abr.  140.  Without  further 
citation  of  authority,  I  think  it  may  safely  be  said  that  no  definition 
of  nuisance  can  be  found  in  any  text-book  or  reported  decision  which 
will  not  embrace  this  case. 

But  the  claim  is  made  that,  although  the  brick-burning  in  this  case 
is  a  nuisance,  a  court  of  equity  will  not  and  ought  not  to  restrain  it, 


422  LAW  OF  TORTS. 

and  the  plaintiffs  should  be  left  to  their  remedy  at  law  to  recover 
damages,  and  this  claim  must  now  be  examined.  Prior  to  Lord  El- 
don's  time,  injunctions  were  rarely  issued  by  courts  of  equity.  Dur- 
ing the  many  years  he  sat  upon  the  woolsack  this  remedy  was  re- 
sorted to  with  increasing  frequency,  and,  with  the  development  of 
equity  jurisprudence  which  has  taken  place  since  his  time,  it  is  well 
said  that  the  writ  of  injunction  has  become  the  right  arm  of  the  court. 
It  was  formerly  rarely  issued  in  the  case  of  a  nuisance  until  plaintiff's 
right  had  been  established  at  law,  and  the  doctrine  which  seems  now 
to  prevail  in  Pennsylvania,  that  this  writ  is  not  matter  of  right,  but 
of  grace,  to  a  large  extent  prevailed.  But  now  a  suit  at  law  is  no 
longer  a  necessary  preliminary,  and  the  right  to  an  injunction,  in  a 
proper  case,  in  England  and  most  of  the  states,  is  just  as  fixed  and 
certain  as  the  right  to  any  other  provisional  remedy.  The  writ  can 
rightfully  be  demanded  to  prevent  irreparable  injury,  interminable 
litigation,  and  a  multiplicity  of  suits,  and  its  refusal  in  a  proper  case 
would  be  error  to  be  corrected  by  an  appellate  tribunal.  It  is  mat- 
ter of  grace  in  no  sense,  except  that  it  rests  in  the  sound  discretion 
of  the  court,  and  that  discretion  is  not  an  arbitrary  one.  If  improp- 
erly exercised  in  any  case,  either  in  granting  or  refusing  it,  the  error 
is  one  to  be  corrected  upon  appeal.  Corning  v.  Nail  Factory,  40 
N.  Y.  191 ;  Reid  v.  Gifford,  Hopk.  Ch.  416;  Pollitt  v.  Long,  58  Barb. 
20]  Railroad  Co.  v.  Archer,  6  Paige,  83;  Parker  v.  Woollen  Co.,  2 
Black,  545,  551,  17  L.  Ed.  333;  Webber  v.  Gage,  39  N.  H.  182;  Dent 
v.  Auction  Mart  Co.,  35  Law  J.  Ch.  555 ;  Attorney  General  v.  Tele- 
graph Co.,  30  Beav.  287;  Wood  v.  Sutcliffe,  2  'Sim.  (N.  S.)  165, 
Clowes  v.  Potteries  Co.,  L.  R.  8  Ch.  App.  125.  Here  the  remedy  at 
law  was  not  adequate.  The  mischief  was  substantial,  and,  within  the 
principle  laid  down  in  the  cases  above  cited,  and  others  to  which  our 
attention  has  been  called,  irreparable. 

The  plaintiffs  had  built  a  costly  mansion,  and  had  laid  out  their 
grounds,  and  planted  them  with  ornamental  and  useful  trees  and  vines, 
for  their  comfort  and  enjoyment.  How  can  one  be  compensated  in 
damages  for  the  destruction  of  his  ornamental  trees,  and  the  flowers 
and  vines  which  surrounded  his  home?  How  can  a  jury  estimate 
their  value  in  dollars  and  cents?  The  fact  that  trees  and  vines  are 
for  ornament  or  luxury  entitles  them  no  less  to  the  protection  of 
the  law.  Every  one  has  the  right  to  surround  himself  with  articles 
of  luxury,  and  he  will  be  no  less  protected  than  one  who  provides 
himself  only  with  articles  of  necessity.  The  law  will  protect  a  flower 
or  a  vine  as  well  as  an  oak.  Cooke  v.  Forbes,  L.  R.  5  Eq.  166 ;  Broad- 
bent  v.  Gas  Co.,  7  De  Gex,  M.  &  G.  436.  These  damages  are  ir- 
reparable, too,  because  the  trees  and  vines  cannot  be  replaced,  and  the 
law  will  not  compel  a  person  to  take  money  rather  than  the  objects 
of  beauty  and  utility  which  he  places  around  his  dwelling  to  gratify 
his  taste  or  to  promote  his  comfort  and  his  health. 


NUISANCE.  423 

Here  the  injunction  also  prevents  a  multiplicity  of  suits.  The  in- 
jury is  a  recurring  one,  and  every  time  the  poisonous  breath  from 
defendant's  brick-kiln  sweeps  over  plaintiffs'  land  they  have  a  cause 
of  action.  Unless  the  nuisance  be  restrained,  the  litigation  would  be 
interminable.  The  policy  of  the  law  favors,  and  the  peace  and  good 
order  of  society  are  best  promoted  by,  the  termination  of  such  liti- 
gation by  a  single  suit.  The  fact  that  this  nuisance  is  not  continual, 
and  that  the  injury  is  only  occasional,  furnishes  no  answer  to  the 
claim  for  an  injunction.  The  nuisance  has  occurred  often  enough 
within  two  years  to  do  the  plaintiffs  large  damage.  Every  time 
a  kiln  is  burned  some  injury  may  be  expected,  unless  the  wind  should 
blow  the  poisonous  gas  away  from  plaintiffs'  lands.  Nuisances  caus- 
ing damage  less  frequently  have  been  restrained.  Ross  v.  Butler,  19 
N.  J.  Eq.  294,  97  Am.  Dec.  654;  Meigs  v.  Lister,  23  N.  J.  Eq.  200; 
Clowes  v.  Potteries  Co.,  supra;  Mulligan  v.  Elias,  12  Abb.  Prac. 
(N.  S.)  259.  It  matters  not  that  the  brick-yard  was  used  before 
plaintiffs  bought  their  lands  or  built  their  houses.  Taylor  v.  People, 
supra;  Wier's  Appeal,  74  Pa.  230;  Brady  v.  Weeks,  3  Barb.  157; 
Barwell  v.  Brooks,  I  Law  T.  454.  One  cannot  erect  a  nuisance  upon 
his  land  adjoining  vacant  lands  owned  by  another,  and  thus  meas- 
urably control  the  uses  to  which  his  neighbor's  land  may  in  the  fu- 
ture be  subjected.  He  may  make  a  reasonable  and  lawful  use  of 
his  land,  and  thus  cause  his  neighbor  some  inconvenience,  and  prob- 
ably some  damage  which  the  law  would  regard  as  damnum  absque 
injuria.  But  he  cannot  place  upon  his  land  anything  which  the  law 
would  pronounce  a  nuisance,  and  thus  compel  his  neighbor  to  leave 
his  land  vacant,  or  to  use  it  in  such  way  only  as  the  neighboring 
nuisance  will  allow. 

It  is  claimed  that  the  plaintiffs  so  far  acquiesced  in  this  nuisance 
as  to  bar  them  from  any  equitable  relief.  I  do  not  perceive  how  any 
acquiescence  short  of  20  years  can  bar  one  from  complaining  of  a 
nuisance,  unless  his  conduct  has  been  such  as  to  estop  him.  There  is 
no  proof  that  plaintiffs,  when  they  brought  their  lands,  knew  that  any 
one  intended  to  burn  any  bricks  upon  the  land  now  owned  by  defend- 
ant. From  about  1840  to  1853  no  bricks  were  burned  there.  Then, 
from  1853  to  1857,  bricks  were  burned  there,  and  then  not  again  un- 
til 1867.  From  1857  to  1867  the  brick-yard  was  plowed  and  used  for 
agricultural  purposes.  Before  suit  brought  plaintiffs  objected  to 
the  brick -burning.  No  act  or  omission  of  theirs  induced  the  defendant 
to  incur  large  expenses,  or  to  take  any  action  which  could  be  the  basis 
of  an  estoppel  against  them,  and  therefore  there  was  no  acquiescence 
or  laches  which  should  bar  the  plaintiffs,  within  any  rule  laid  down  in 
any  reported  case. 

It  is  true  that  if  a  party  sleeps  on  his  rights,  and  allows  a  nuisance 
to  go  on  without  remonstrance,  or  without  taking  measures,  either 
by  suit  at  law  or  in  equity,  to  protect  his  rights,  and  allows  one  to  go 


424  LAW  OF  TORTS. 

on  making  large  expenditures  about  the  business  which  constitutes  the 
nuisance,  he  will  sometimes  be  regarded  as  guilty  of  such  laches  as  to 
deprive  him  of  equitable  relief.  But  this  is  not  such  a  case.  Raden- 
hurst  v.  Coate,  6  Grant,  Ch.  140;  Heenan  v.  Dewar,  18  Grant,  Ch. 
438 ;  Bankart  v.  Houghton,  27  Beav.  425. 

The  defendant  claims  a  prescriptive  right  to  burn  bricks'  upon 
his  land,  and  to  cause  the  poisonous  vapors  to  flow  over  plaintiffs' 
lands.  Assuming  that  defendant  could  acquire,  by  lapse  of  time  and 
continuous  user,  the  prescriptive  right  which  he  claims,  there  has 
not  here  been  a  continuous  use  and  exercise  of  the  right  for  20  con- 
secutive yeafs.  Anthracite  coal  was  first  used  for  burning  bricks  in 
this  yard  in  1834,  and  after  six  years  brick-burning  was  discontin- 
ued. It  was  not  resumed  again  until  about  1853,  and  after  four  years 
it  was  again  discontinued,  and  it  was  not  resumed  again  until  1867. 
So  that  anthracite  coal,  which  caused  plaintiffs'  damage,  had  not  been 
used  in  all  for  20  years,  and  certainly  not  continuously  in  burning 
bricks  upon  the  yard  now  owned  by  defendant.  If  he  could  acquire 
the  right  claimed  by  prescription,  he,  and  those  under  whom  he  holds, 
must  for  20  years  have  caused  the  poisonous  gases  to  flow  over 
plaintiffs'  land  whenever  they  burned  bricks,  and  the  wind  blew  from 
the  direction  of  the  kiln.  Such  a  prescription  neither  the  allegations 
in  the  answer,  nor  the  proofs  upon  the  trial,  nor  the  findings  of  the 
referee,  warrant.  The  referee  finds  that  the  premises  of  defendant 
have  been  known  and  used  as  -a  brick-yard  for  over  25  years.  This 
is  not  finding  that  they  have  been  used  as  a  brick-yard  for  25  years 
continuously,  or  that  they  have  caused  the  poisonous  gases  to  flow 
over  plaintiffs'  land  for  that  length  of  time  continuously.  Ball  v. 
Ray,  L.  R.  8  Ch.'  App.  467;  Parker  v.  Mitchell,  n  Adol.  &  E.  788; 
Battishill  v.  Reed,  18  C.  B.  (N.  S.)  696;  Fish  Co.  v.  Dudley,  37  Conn. 
136. 

Where  the  damage  to  one  complaining  of  a  nuisance  is  small  or 
trifling,  and  the  damage  to  the  one  causing  the  nuisance  will  be 
large  in  case  he  be  restrained,  the  courts  will  sometimes  deny  an  in- 
junction. But  such  is  not  this  case.  Here  the  damage  to  the  plain- 
tiffs, as  found  by  the  referee,  is  large  and  substantial.  It  does  not 
appear  how  much  damage  the  defendant  will  suffer  from  the  restraint 
of  the  injunction.  He  does  not  own  the  only  piece  of  ground  where 
bricks  can  be  made.  We  know  that  material  for  brick  may  exist  in 
all  parts  of  our  state,  and  particularly  at  various  points  along  the 
Hudson  river.  An  injunction  need  not,  therefore,  destroy  defend- 
ant's business,  or  interfere  materially  with  the  useful  and  necessary 
trade  of  brick-making.  It  does  not  appear  how  valuable  defendant's 
land  is  for  a  brick-yard,  nor  how  expensive  are  his  erections  for  brick- 
making.  I  think  we  may  infer  that  they  are  not  expensive.  For 
aught  that  appears,  his  land  may  be  put  to  other  use  just  as  profitable 
to  him.  It  does  not  appear  that  defendant's  damage  from  an  abate- 


NUISANCE.  425 

ment  of  the  nuisance  will  be  as  great  as  plaintiffs'  damage  from  its 
continuance.  Hence  this  is  not  a  case  within  any  authority  to  which 
our  attention  has  been  called  where  an  injunction  should  be  denied  on 
account  of  the  serious  consequences  to  the  defendant. 

We  cannot  apprehend  that  our  decision  in  this  case  can  improperly 
embarrass  those  engaged  in  the  useful  trade  of  brick-making.  Similar 
decisions  in  England,  where  population  and  human  habitations  are  more 
dense,  do  not  appear  to  have  produced  any  embarrassment.  In  this 
country  there  can  be  no  trouble  to  find  places  where  brick  can  be  made 
without  damage  to  persons  living  in  the  vicinity.  It  certainly  cannot 
be  necessary  to  make  them  in  the  heart  of  a  village  or  in  the  midst  of 
a  thickly-settled  community. 

It  follows  from  these  views  that  the  judgment  should  be  affirmed. 
All  concur. 

Judgment  affirmed. 

(For  excellent  definitions  of  a  nuisance,  see  Bo'han  v.  Port  Jervis  Gaslight 
Co.,  122  N.  Y.  18,  25  N.  E.  246,  9  L.  R.  A.  711 ;  Laflin  Powder  Co.  v.  Tearney, 
131  111.  322,  23  N.  E.  389,  7  L.  R.  A.  262,  19  Am.  St.  Rep.  34.  The  rule  that 
one  "coming  to  a  nuisance"  cannot  have  relief  against  it  is  thoroughly  ex- 
ploded. Thus,  where  manufacturing  works  were  established  at  a  place 
remote  from  habitation,  and  the  neighboring  city  grew  to  this  point,  and 
the  owners  of  adjoining  lands  built  dwellings  thereon,  it  was  held  that  they 
were  entitled  to  relief  if  the  works  were  so  conducted  as  to  be  a  nuisance 
to  them.  People  v.  Detroit  White  Lead  Works,  82  Mich.  471,  46  N.  W.  735, 
9  L.  R.  A.  722 ;  Wier's  Appeal,  74  Pa.  230 ;  Susquehanna  Fertilizer  Co.  v. 
Malone,  73  Md.  268,  20  Atl.  900,  9  L.  R.  A.  737,  25  Am.  St.  Rep.  595;  Van 
Fossen  v.  Clark,  113  Iowa,  86.  84  N.  W.  989,  52  L.  R.  A.  279 ;  Ducktown  Sul- 
phur Co.  v.  Barnes  [Tenn.]  60  S.  W.  593;  Laflin  Powder  Co.  v.  Tearney,  131 
111.  322,  23  N.  E.  389,  7  L.  R.  A.  262,  19  Am.  St.  Rep.  34.  No  prescriptive 
right  can  be  acquired  to  maintain  a  public  nuisance.  Driggs  v.  Phillips,  103 
N.  Y.  77,  8  N.  E.  514 ;  Cooley  on  Torts  [2d  Ed.]  730.) 


(11  H.  L.  Cas.  *642.) 

ST.  HELEN'S  SMELTING  CO.  v.  TIPPING. 
(House  of  Lords.     July  5,  1865.) 

NUISANCE— WHAT  CONSTITUTES— VAPORS  FROM  USEFUL  INDUSTRIES. 

In  an  action  to  recover  for  a  nuisance  caused  by  vapors  arising  from 
the  operation  of  defendant's  smelting  works  on  adjoining  premises,  the 
court  charged  the  jury  that  every  man  is  bound  to  use  his  own  property 
In  such  a  manner  as  not  to  injure  the  property  of  his  neighbor,  unless, 
by  the  lapse  of  a  certain  period  of  time,  he  has  acquired  a  prescriptive 
right  to  do  so ;  that  the  law  does  not  regard  trifling  inconveniences ; 
that  everything  must  be  looked  at  from  a  reasonable  point  of  view ;  and, 
therefore,  in  an  action  for  nuisance  to  property  by  noxious  vapors  arising 
on  the  land  of  another,  the  injury,  to  be  actionable,  must  be  such  as 
visibly  to  diminish  the  value  of  the  property,  and  the  comfort  and 
enjoyment  of  it;  that,  in  determining  that  question,  the  time,  locality, 


426  LAW  OF  TORTS. 

and  all  the  circumstances  should  be  taken  into  consideration;  that,  in 
countries  where  great  works  have  been  erected  and  carried  on  which 
are  the  means  of  developing  the  natural  wealth,  persons  must  not  stand 
on  extreme  rights,  and  bring  actions  in  respect  of  every  matter  of  an- 
noyance, as,  if  that  were  so,  business  could  not  be  carried  on  in  these 
places.  The  court  refused  to  hold  that  the  questions  which  ought  to  be 
submitted  to  the  jury  were  "whether  it  was  a  necessary  trade,  whether 
the  place  was  a  suitable  place  for  such  a  trade,  and  whether  it  was 
carried  on  in  a  reasonable  manner."  Held,  not  erroneous. 

Appeal  from  Exchequer  Chamber. 

Action  by  William  Tipping  against  the  St.  Helen's  Copper  Smelting 
Company,  Limited,  for  a  nuisance  to  plaintiff's  dwelling-house  and 
premises  caused  by  noxious  vapors  proceeding  from  smelting  works 
owned  and  operated  by  defendant  on  adjoining  lands,  which  destroyed 
plaintiff's  trees  and  foliage,  injured  his  cattle,  and  were  detrimental  to 
his  health.  At  the  trial  in  the  court  of  queen's  bench,  before  Melloi, 
J.,  defendant's  counsel  contended  that  the  three  questions  which  ought 
to  be  submitted  to  the  jury  were  "whether  it  was  a  necessary  trade, 
whether  the  place  was  a  suitable  place  for  such  a  trade,  and  whether  it 
was  carried  on  in  a  reasonable  manner."  The  court  refused  so  to  hold, 
but  charged  the  jury  that  every  man  is  bound  to  use  his  own  property  in 
such  a  manner  as  not  to  injure  the  property  of  his  neighbor,  unless,  by 
the  lapse  of  a  certain  period  of  time,  he  has  acquired  a  prescriptive 
right  to  do  so;  that  the  law  does  not  regard  trifling  inconveniences; 
that  everything  must  be  looked  at  from  a  reasonable  point  of  view ; 
and  therefore,  in  an  action  for  nuisance  to  property  by  noxious  vapors 
arising  on  the  land  of  another,  the  injury,  to  be  actionable,  must  be  such 
as  visibly  to  diminish  the  value  of  the  property  and  the  comfort  and 
enjoyment  of  it;  that,  in  determining  that  question,  the  time,  locality, 
and  all  the  circumstances  should  be  taken  into  consideration;  that,  in 
countries  where  great  works  have  been  erected  and  carried  on  which 
are  the  means  of  developing  the  natural  wealth,  persons  must  not  stand 
on  extreme  rights,  and  bring  actions  in  respect  of  every  matter  of  an- 
noyance, as,  if  that  were  so,  business  could  not  be  carried  on  in  those 
places.  The  jury  found  specially  that  the  enjoyment  of  plaintiff's 
property  was  sensibly  diminished ;  that  the  business  carrie-d  on  by  de- 
fendant was  the  ordinary  business  of  smelting  copper,  and  conducted 
in  a  proper  manner,  in  as  good  a  manner  as  possible ;  and  that  it  was 
carried  on  in  a  proper  place;  and  found  a  verdict  for  plaintiff  for 
£361  damages.  Defendant  moved  for  a  new  trial,  which  was  refused. 
4  Best  &  S.  608.  The  judgment  of  the  queen's  bench  was  affirmed  by 
the  exchequer  chamber,  and  from  that  judgment  defendant  appealed. 

MARTIN,  B.  In  answer  to  the  questions  proposed  by  your  lord- 
ships to  the  judges,  I  have  to  state  their  unanimous  opinion  that  the 
directions  given  by  the  learned  judge  to  the  jury  are  correct,  and  that 
a  new  trial  ought  not  to  be  granted.  As  far  as  the  experience  of  all  of 


NUISANCE.  421 

us  goes,  the  directions  are  such  as  we  have  given  in  these  cases  for  the 
last  20  years. 

THE  LORD  CHANCELLOR.  My  lords,  I  think  your  lordships 
will  be  satisfied  with  the  answer  we  have  received  from  the  learned 
judges  to  the  question  put  by  this  house.  My  lords,  in  matters  of  this 
description,  it  appears  to  me  that  it  is  a  very  desirable  thing  to  mark 
the  difference  between  an  action  brought  for  a  nuisance  upon  the  ground 
that  the  alleged  nuisance  produces  material  injury  to  the  property,  and 
an  action  brought  for  a  nuisance  on  the  ground  that  the  thing  alleged 
to  be  a  nuisance  is  productive  of  sensible  personal  discomfort.  With 
regard  to  the  latter,  namely,  the  personal  convenience,  an  interference 
with  one's  enjoyment,  one's  quiet,  one's  personal  freedom,  anything 
that  discomposes  or  injuriously  affects  the  senses  or  the  nerves,  whether 
that  may  or  may  not  be  denominated  a  "nuisance,"  must  undoubtedly 
depend  greatly  on  the  circumstances  of  the  place  where  the  thing  com- 
plained of  actually  occurs.  If  a  man  lives  in  a  town,  it  is  necessary 
that  he  should  subject  himself  to  the  consequences  of  those  operations 
of  trade  which  may  be  carried  on  in  his  immediate  locality,  which  are 
actually  necessary  for  trade  and  commerce,  and  also  for  the  enjoyment 
of  property  and  for  the  benefit  of  the  inhabitants  of  the  town  and  of 
the  public  at  large.  If  a  man  lives  in  a  street  where  there  are  numer- 
ous shops,  and  a  shop  is  opened  next  door  to  him,  which  is  carried  on 
in  a  fair  and  reasonable  way,  he  has  no  ground  for  complaint  because 
to  himself  individually  there  may  arise  much  discomfort  from  the 
trade  carried  on  in  that  shop ;  but  when  an  occupation  is  carried  on  by 
one  person  in  the  neighborhood  of  another,  and  the  result  of  that  trade 
or  occupation  or  business  is  a  material  injury  to  property,  then  there 
unquestionably  arises  a  very  different  consideration.  I  think,  my 
lords,  that,  in  a  case  of  that  description,  the  submission  which  is  re- 
quired from  persons  living  in  society  to  that  amount  of  discomfort 
which  may  be  necessary  for  the  legitimate  and  free  exercise  of  the  trade 
of  their  neighbors  would  not  apply  to  circumstances  the  immediate  re- 
sult of  which  is  sensible  injury  to  the  value  of  the  property.  Now,  in 
the  present  case,  it  appears  that  the  plaintiff  purchased  a  very  valuable 
estate,  which  lies  within  a  mile  and  a  half  from  certain  large  smelting 
works.  What  the  occupation  of  these  copper  smelting  premises  was 
anterior  to  the  year  1860  does  not  clearly  appear.  The  plaintiff  became 
the  proprietor  of  an  estate  of  great  value  in  the  month  of  June,  1860. 
In  the  month  of  September,  1860,  very  extensive  smelting  operations 
began  on  the  property  of  the  present  appellant, — the  works  at  St. 
Helen's.  Of  the  effect  of  the  vapors  exhaling  from  those  works  upon 
the  plaintiff's  property,  and  the  injury  done  to  the  trees  and  shrubs, 
there  is  abundance  of  evidence  in  the  case.  My  lords,  the  action  has 
been  brought  upon  that;  the  jurors  have  found  the  existence  of  the 
injury ;  and  the  only  ground  upon  which  your  lordships  are  asked  to  set 


428  LAW  OF   TORTS. 

aside  that  verdict,  and  to  direct  a  new  trial,  is  this :  That  the  whole 
neighborhood  where  these  copper  smelting  works  were  carried  on  is  a 
neighborhood  more  or  less  devoted  to  manufacturing  purposes,  of  a 
similar  kind,  and  therefore  it  is  said  that,  inasmuch  as  this  copper 
smelting  is  carried  on  in  what  the  appellant  contends  is  a  fit  place,  it 
may  be  carried  on  with  impunity,  although  the  result  may  be  the  utter 
destruction  or  the  very  considerable  diminution  of  the  value  of  the 
plaintiff's  property.  My  lords,  I  apprehend  that  that  is  not  the  mean- 
ing of  the  word  "suitable,"  or  the  meaning  of  the  word  "convenient," 
which  has  been  used  as  applicable  to  the  subject.  The  word  "suitable" 
unquestionably  cannot  carry  with  it  this  consequence, — that  a  trade  may 
be  carried  on  in  a  particular  locality,  the  consequence  of  which  trade 
may  be  the  injury  and  destruction  to  the  neighboring  property.  Of 
course,  my  lords,  I  except  cases  where  any  prescriptive  right  has  been 
acquired  by  a  lengthened  user  of  the  place.  On  these  grounds,  there- 
fore, shortly,  without  dilating  further  upon  them,  (and  they  are  suf- 
ficiently unfolded  by  the  judgment  of  .the  learned  judges  in  the  court 
below,)  I  advise  your  lordships  to  affirm  the  decision  of  the  court  be- 
low, and  to  refuse  the  new  trial,  and  to  dismiss  the  appeal,  with  costs. 

LORD  CRANWORTH.  My  lords,  I  entirely  concur  in  opinion 
with  my  noble  and  learned  friend  on  the  woolsack,  and  also  in  the 
opinion  expressed  by  the  learned  judges  that  this  has  been  considered 
to  be  the  proper  mode  of  directing  a  jury,  as  Mr.  Baron  Martin  said, 
for  at  least  20  years.  I  believe  I  should  have  carried  it  back  rather 
further.  In  stating  what  I  always  understood  the  proper  question  to  be, 
I  cannot  do  better  than  adopt  the  language  of  Mr.  Justice  Mellor.  He 
says :  "It  must  be  plain  that  persons  using  a  lime-kiln  or  other  works, 
which  emit  noxious  vapors,  may  not  do  an  actionable  injury  to  another; 
and  that  any  place,  where  such  an  operation  is  carried  on  so  that  it  does 
occasion  an  actionable  injury  to  another,  is  not,  in  the  meaning  of  the 
law,  a  convenient  place."  I  always  understood  that  to  be  so;  but  in 
truth,  as  was  observed  in  one  of  the  cases  by  the  learned  judges,  it  is 
extremely  difficult  to  lay  down  any  actual  definition  of  what  constitutes 
an  injury,  because  it  is  always  a  question  of  compound  facts,  which 
must  be  looked  to,  to  see  whether  or  not  the  mode  of  carrying  on  a  busi- 
ness did  or  did  not  occasion  so  serious  an  injury  as  to  interfere  with  the 
comforts  of  life  and  enjoyment  of  property.  I  perfectly  well  remem- 
ber, when  I  had  the  honor  of  being  one  of  the  barons  of  the  court  of 
exchequer,  trying  a  case  in  the  county  of  Durham,  where  there  was  an 
action  for  injury  arising  from  smoke  in  the  town  of  Shields.  It  was 
proved  incontestably  that  smoke  did  come,  and  in  some  degree  interfere 
with  a  certain  person,  but  I  said :  "You  must  look  at  it,  not  with  a  view 
to  the  question  whether,  abstractedly,  that  quantity  of  smoke  was  a 
nuisance,  but  whether  it  was  a  nuisance  to  a  person  living  in  the  town 
of  Shields;"  because,  if  it  only  added  in  an  infinitesimal  degree  to 


NUISANCE.  429 

the  quantity  of  smoke,  I  thought  that  the  state  of  the  town  rendered  it 
altogether  impossible  to  call  that  an  actionable  nuisance.  There  is 
nothing  of  that  sort  in  the  present  case.  It  seems  to  me  that  the  dis- 
tinction, in  matter  of  fact,  was  most  correctly  pointed  out  by  Mr. 
Justice  Mellor,  and  I  do  not  think  he  could  possibly  have  stated  the  law, 
either  abstractedly,  or  with  reference  to  the  facts,  better  than  he  has 
done  in  this  case. 

LORD  WENSLEYDALE.  My  lords,  I  entirely  agree  in  opinion 
with  both  my  noble  and  learned  friends  in  this  case.  In  these  few 
sentences  I  think  everything  is  included:  The  defendants  say,  "If 
you  do  not  mind,  you  will  stop  the  progress  of  works  of  this  descrip- 
tion." I  agree  that  that  is  so,  because,  no  doubt,  in  the  county  of  Lan- 
caster, above  all  other  counties,  where  great  works  have  been  created 
and  carried  on,  and  are  the  means  of  developing  the  national  wealth, 
you  must  not  stand  on  extreme  rights,  and  allow  a  person  to  say,  "I 
will  bring  an  action  against  you  for  this  and  that  and  so  on."  Busi- 
ness could  not  go  on  if  that  were  so.  Everything  must  be  looked  to 
from  a  reasonable  point  of  view.  Therefore  the  law  does  not  regard 
trifling  and  small  inconveniences,  but  only  regards  sensible  inconven- 
iences,— injuries  which  sensibly  diminish  the  comfort,  enjoyment,  or 
value  of  the  property  which  is  affected.  My  lords,  I  do  not  think  the 
question  could  have  been  more  correctly  laid  down  by  any  one  to 
the  jury,  and  I  entirely  concur  in  the  propriety  of  dismissing  this  ap- 
peal. 

Appeal  dismissed,  with  costs. 

(This  case  is  followed  in  Hennessy  v.  Carmony,  50  N.  J.  Eq.  616,  25  Atl. 
374;  Susquehanna  Fertilizer  Co.  v.  Malone,  73  Md.  268,  20  Atl.  900,  9  L.  R. 
A.  737,  25  Am.  St.  Rep.  595 ;  McKeon  v.  See,  51  N.  Y.  300,  10  Am.  Rep.  659 ; 
Ducktown  Sulphur  Co.  v.  Barnes  [Tenn.]  60  S.  W.  593.  The  location  of  an 
alleged  nuisarce  is  always  to  be  taken  into  consideration.  What  would  be 
a  nuisance  in  one  place  would  be  perfectly  legitimate  in  another.  Demurest 
v.  Hardham,  34  N.  J.  Eq.  469;  Eller  v.  Koehler  [Ohio]  67  N.  E.  89;  Couiui. 
v.  Miller,  139  Pa.  77,  21  Atl.  138,  23  Am.  St.  Rep.  170.) 


430  LAW  OF  TORTS. 

II.  EXAMPLES  OF  NUISANCES. 
L  Drainage  of  surface  waters. 

(86  N.  Y.  140,  40  Am.  Rep.  519.) 

BARKLEY  v.  WILCOX. 
(Court  of  Appeals  of  New  York.     Oct.  4,  1881.) 

SUBFACE  WATERS— OBSTRUCTING. 

The  owner  of  land,  which  is  so  situated  that  the  surface  waters  from 
the  land  above  naturally  descend  upon  and  pass  over  it,  may  in  good 
faith,  and  for  the  purpose  of  building  upon  and  improving  his  land,  fill 
and  grade  it,  although  thereby  the  water  is  prevented  from  reaching  it, 
and  is  detained  upon  the  land  above. 

Appeal  from  Supreme  Court,  General  Term,  Second  Department. 

Action  by  Alfred  Barkley  against  Nelson  Wilcox  to  recover  damages 
for  injuries  alleged  to  have  been  sustained  by  the  obstruction  of  the 
natural  flow  of  surface  water  from  plaintiff's  lot  over  and  across  that 
of  defendant.  The  case  was  submitted  to  a  referee,  who  reported  in 
favor  of  defendant,  and  the  judgment  entered  thereon  was  affirmed  by 
the  general  term.  19  Hun,  320.  From  the  judgment  of  the  general 
term  plaintiff  appealed. 

ANDREWS,  J.  This  is  not  the  case  of  a  natural  water-course.  A 
natural  water-course  is  a  natural  stream,  flowing  in  a  defined  bed  or 
channel,  with  banks  and  sides,  having  permanent  sources  of  supply. 
It  is  not  essential  to  constitute  a  water-course  that  the  flow  should  be 
uniform  or  uninterrupted.  The  other  elements  existing,  a  stream  does 
not  lose  the  character  of  a  natural  water-course  because,  in  times  of 
drought,  the  flow  may  be  diminished,  or  temporarily  suspended.  It  is 
sufficient  if  it  is  usually  a  stream  of  running  water.  Ang.  Water- 
Courses,  §  4;  Luther  v.  Winnisimmet  Co.,  9  Cush.  171. 

The  parties  in  this  case  own  adjacent  lots  on  a  street  near  a  village, 
but  not  within  the  corporate  limits.  The  findings  are  that  the  natural 
formation  of  the  land  was  such  that  surface  water  from  rains  and  melt- 
ing snows  would  descend  from  different  directions  and  accumulate  in 
the  street  in  front  of  the  plaintiff's  lot,  in  varying  quantities  according 
to  the  nature  of  the  seasons,  sometimes  extending  quite  back  upon 
plaintiff's  lot;  that  in  times  of  unusual  amount  of  rain,  or  thawing 
snow,  such  accumulations,  before  the  grading  of  the  defendant's  lot, 
were  accustomed  to  run  off  over  a  natural  depression  in  the  surface  of 
the  land,  across  the  defendant's  lot,  and  thence  over  the  lands  of  others, 
to  the  Neversink  river;  that  when  the  amount  of  water  was  small,  it 
would  soak  away  in  the  ground;  that  in  1871  the  defendant  built  a 
house  on  his  lot,  and  used  the  earth  excavated  in  digging  the  cellar  to 


NUISANCE.  431 

improve  and  better  the  condition  of  his  lot,  by  grading  and  filling  up 
the  lot,  and  sidewalk  in  front  of  it,  about  12  inches,  and  on  a  subsequent 
occasion  he  filled  in  several  inches  more;  that  in  the  spring  of  1875 
there  was  an  unusually  large  accumulation  of  water  from  melting  snow 
and  rains  in  front  of  and  about  the  plaintiff's  premises,  so  that  the 
water  ran  into  the  cellar  of  his  house,  and  occasioned  serious  damage ; 
that  the  filling  in  of  the  defendant's  lot  had  the  effect  to  increase  the 
accumulation  of  water  on  the  plaintiff's  lot,  and  contributed  to  the 
injury  to  his  property. 

There  was  no  natural  water-course  over  the  defendant's  lot.  The 
surface  water,  by  reason  of  the  natural  features  of  the  ground,  and  the 
force  of  gravity,  when  it  accumulated  beyond  a  certain  amount  in  front 
of  the  plaintiff's  lot,  passed  upofT  and  over  the  lot  of  the  defendant. 
The  discharge  was  not  constant  or  usual,  but  occasional  only.  There 
was  no  "channel"  or  "stream,"  in  the  usual  sense  of  those  terms.  In  an 
undulating  country,  there  must  always  be  valleys  and  depressions,  to 
which  water,  from  rains  or  snow,  will  find  its  way  from  the  hill-sides, 
and  be  finally  discharged  into  some  natural  outlet.  But  this  does  not 
:onstitute  such  valleys  or  depressions  water-courses.  Whether,  when 
the  premises  of  adjoining  owners  are  so  situated  that  surface  water  fall- 
ing upon  one  tenement  naturally  descends  to  and  passes  over  the  other, 
the  incidents  of  a  water-course  apply  to  and  govern  the  rights  of  the 
respective  parties,  so  that  the  owner  of  the  lower  tenement  may  not, 
even  in  good  faith  and  for  the  purpose  of  improving  or  building  upon 
his  own  land,  obstruct  the  flow  of  such  water  to  the  injury  of  the  owner 
above,  is  the  question  to  be  determined  in  this  case.  This  question 
does  not  seem  to  have  been  authoritatively  decided  in  this  state.  It  was 
referred  to  by  Denio,  C.  J.,  in  Goodale  v.  Tuttle,  29  N.  Y.  467,  where 
he  said :  "And,  in  respect  to  the  running  off  of  surface  water  caused 
by  rain  or  snow,  I  know  of  no  principle  which  will  prevent  the  owner 
of  the  land  from  filling  up  the  wet  and  marshy  places  on  his  own  soil, 
for  its  amelioration  and  his  own  advantage,  because  his  neighbor's 
land  is  so  situated  as  to  be  incommoded  by  it.  Such  a  doctrine  would 
militate  against  the  well-settled  rule  that  the  owner  of  land  has  full 
dominion  over  the  whole  space  above  and  below  the  surface."  The 
case  in  which  these  observations  were  made  did  not  call  for  the  decision 
of  the  question,  but  they  show  the  opinion  of  a  great  judge  upon  the 
point  now  in  judgment.  Similar  views  have  been  expressed  in  subse- 
quent cases  in  this  court,  although  in  none  of  them,  it  seems,  was  the 
question  before  the  court  for  decision.  Vanderwiele  v.  Taylor,  65  N. 
Y.  341 ;  Lynch  v.  Mayor,  etc.,  76  N.  Y.  60,  32  Am.  Rep.  271.  The 
question  has  been  considered  by  courts  in  other  states,  and  has  been  de- 
cided in  different  ways.  In  some  the  doctrine  of  the  civil  law  has  been 
adopted  as  a  rule  of  decision.  By  that  law,  the  right  of  drainage 
of  surface  water,  as  between  owners  of  adjacent  lands,  of  different  ele- 
vations, is  governed  by  the  law  of  nature.  The  lower  proprietor  ii 


432  LAW  OF  TORTS. 

bound  to  receive  the  waters  which  naturally  flow  from  the  estate  above, 
provided  the  industry  of  man  has  not  created  or  increased  the  servitude. 
Corp.  Jur.  Civ.  39,  tit.  3,  §§  2-5 ;  Domat,  (Cush.  Ed.)  616 ;  Code  Nap. 
art.  640 ;  Code  La.  art.  656.  The  courts  of  Pennsylvania,  Illinois,  Cali- 
fornia, and  Louisiana  have  adopted  this  rule,  and  it  has  been  referred 
to  with  approval  by  the  courts  of  Ohio  and  Missouri.  Martin  v.  Riddle, 
26  Pa.  415 ;  Kauffman  v.  Griesemer,  Id.  407,  67  Am.  Dec.  437 ;  Gillham 
v.  Railroad  Co.,  49  111.  484,  95  Am.  Dec.  627 ;  Gormley  v.  Sanford,  52 
111.  158;  Ogburn  v.  Connor,  46  Cal.  346,  13  Am.  Rep.  213;  Dela- 
houssaye  v.  Judice,  13  La.  Ann.  587,  71  Am.  Dec.  521 ;  Hays  v.  Hays, 
19  La.  351 ;  Butler  v.  Peck,  16  Ohio  St.  334,  88  Am.  Dec.  452;  Lau- 
mier  v.  Francis,  23  Mo.  181.  On  the  other  hand,  the  courts  of  Massa- 
chusetts, New  Jersey,  New  Hampshire,  and  Wisconsin  have  rejected 
the  doctrine  of  the  civil  law,  and  hold  that  the  relation  of  dominant 
and  servient  tenements  does  not,  by  the  common  law,  apply  between  ad- 
joining lands  of  different  owners,  so  as  to  give  the  upper  proprietor 
the  legal  right,  as  an  incident  of  his  estate,  to  have  the  surface  water 
falling  on  his  land  discharged  over  the  land  of  the  lower  proprietor, 
although  it  naturally  finds  its  way  there ;  and  that  the  lower  proprietor 
may  lawfully,  for  the  improvement  of  his  estate  and  in  the  course  of 
good  husbandry,  or  to  make  erections  thereon,  fill  up  the  low  places  on 
his  land,  although  by  so  doing  he  obstructs  or  prevents  the  surface  water 
from  passing  thereon  from  the  premises  above  to  the  injury  of  the  up- 
per proprietor.  Luther  v.  Winnisimmet  Co.,  9  Cush.  171 ;  Parks  v. 
Newburyport,  10  Gray,  28 ;  Dickinson  v.  Worcester,  7  Allen,  19 ;  Gan- 
non v.  Hargadon,  10  Allen,  106,  87  Am.  Dec.  625 ;  Bowlsby  v.  Speer, 
31  N.  J.  Law,  351,  86  Am.  Dec.  216;  Pettigrew  v.  Evansville,  25  Wis. 
223,  3  Am.  Rep.  50 ;  Hoyt  v.  Hudson,  27  Wis.  656,  9  Am.  Rep.  473 ; 
Swett  v.  Cutts,  50  N.  H.  439,  9  Am.  Rep.  276.  It  may  be  observed  that 
in  Pennsylvania  house-lots  in  towns  and  cities  seem  to  be  regarded  as 
not  subject  to  the  rule  declared  in  the  other  cases  in  that  state  in  re- 
spect to  surface  drainage.  Bentz  v.  Armstrong,  8  Watts  &  S.  40,  42 
Am.  Dec.  265.  And  in  Livingston  v.  McDonald,  21  Iowa,  160,  89  Am. 
Dec.  563,  the  court,  in  an  opinion  by  Dillon,  J.,  after  stating  the  civil- 
law  doctrine,  say  that  it  may  be  doubted  whether  it  will  be  adopted  by 
the  common-law  courts  of  this  country,  so  far  as  to  preclude  the  lower 
owner  from  making,  in  good  faith,  improvements  which  would  have  the 
effect  to  prevent  the  water  of  the  upper  estate  from  flowing  or  passing 
away.  Professor  Washburn  states  that  the  prevailing  doctrine  seems 
to  be  that  if,  for  the  purposes  of  improving  and  cultivating  his  land,  a 
land-owner  raises  or  fills  it,  so  that  the  water  which  falls  in  rain  or 
snow  upon  an  adjacent  owner's  land,  and  which  formerly  flowed  onto 
the  first-mentioned  parcel,  is  prevented  from  so  doing,  to  the  injury  of 
the  adjacent  parcel,  the  owner  of  the  latter  is  without  remedy,  since  the 
other  party  has  done  no  more  than  he  had  a  legal  right  to  do.  Washb. 
Easem.  (2d  Ed.)  431. 


NUISANCE.  433 

Upon  this  state  of  the  authorities,  we  are  at  liberty  to  adopt  such  rule 
on  the  subject  as  we  may  deem  most  consonant  with  the  demands  of 
justice,  having  in  view,  on  the  one  hand,  individual  rights,  and  on  the 
other  the  interests  of  society  at  large.  Upon  consideration  of  the  ques- 
tion, we  are  of  opinion  that  the  rule  stated  by  Denio,  C.  J.,  in  Goodale 
v.  Tuttle,  is  the  one  best  adapted  to  our  condition,  and  accords  with 
public  policy ;  while,  at  the  same  time,  it  does  not  deprive  the  owner  of 
the  upper  tenement  of  any  legal  right  of  property.  The  maxim,  aqua 
currit,  et  debet  currere,  ut  currere  solebat,  expresses  the  general  law 
which  governs  the  rights  of  owners  of  property  on  water-courses.  The 
owners  of  land  on  a  water-course  are  not  owners  of  the  water  which 
flows  in  it.  But  each  owner  is  entitled,  by  virtue  of  his  ownership 
of  the  soil,  to  the  reasonable  use  of  the  water,  as  it  passes  his  premises, 
for  domestic  and  other  uses,  not  inconsistent  with  a  like  reasonable  use 
of  the  stream  by  owners  above  and  below  him.  Such  use  is  incident  to 
his  right  of  property  in  the  soil.  But  he  cannot  divert,  or  unreasonably 
obstruct,  the  passage  of  the  water,  to  the  injury  of  other  proprietors. 
These  familiar  principles  are  founded  upon  the  most  obvious  dictates 
of  natural  justice  and  public  policy.  The  existence  of  streams  is  a 
permanent  provision  of  nature,  open  to  observation  by  every  purchaser 
of  land  through  which  they  pass.  The  multiplied  uses  to  which  in 
civilized  society  the  water  of  rivers  and  streams  is  applied,  and  the  wide 
injury  which  may  result  from  an  unreasonable  interference  with  the 
order  of  nature,  forbid  an  exclusive  appropriation  by  an  individual  of 
the  water  in  a  natural  water-course,  or  any  unreasonable  interruption 
in  the  flow.  It  is  said  that  the  same  principle  of  following  the  order  of 
nature  should  be  applied  between  coterminous  proprietors,  in  determin- 
ing the  right  of  mere  surface  drainage.  But  it  is  to  be  observed  that 
the  law  has  always  recognized  a  wide  distinction  between  the  right  of 
an  owner  to  deal  with  surface  water  falling  or  collecting  on  his  land 
and  his  right  in  the  water  of  a  natural  water-course.  In  such  water, 
before  it  leaves  his  land  and  becomes  a  part  of  a  definite  water-course, 
the  owner  of  the  land  is  deemed  to  have  an  absolute  property,  and  he 
may  appropriate  it  to  his  exclusive  use,  or  get  rid  of  it  in  any  way  he 
can,  provided  only  that  he  does  not  cast  it,  by  drains  or  ditches,  upon 
the  land  of  his  neighbor ;  and  he  may  do  this,  although  by  so  doing  he 
prevents  the  water  reaching  a  natural  water-course,  as  it  formerly  did, 
thereby  occasioning  injury  to  mill-owners  or  other  proprietors  on  the 
stream.  So,  also,  he  may,  by  digging  on  his  own  land,  intercept  the 
percolating  waters  which  supply  his  neighbor's  spring.  Such  conse- 
quential injury  gives  no  right  of  action.  Acton  v.  Blundell,  12  Mees. 
&  W.  324 ;  Rawstron  v.  Taylor,  1 1  Exch.  369 ;  Phelps  v.  Nowlen,  72 
N.  Y.  39,  28  Am.  Rep.  93.  Now,  in  these  cases  there  is  an  interference 
with  natural  laws.  But  those  laws  are  to  be  construed  in  connection 
with  social  laws  and  the  laws  of  property.  The  interference  in  these 
cases  with  natural  laws  is  justified,  because  the  general  law  of  society 
CHASE  (2o  ED.) — 28 


434  LAW  OF  TORTS. 

is  that  the  owner  of  land  has  full  dominion  over  what  is  above,  upon, 
or  below  the  surface,  and  the  owner,  in  doing  the  acts  supposed,  is 
exercising  merely  a  legal  right.  The  owner  of  wet  and  spongy  land 
cannot,  it  is  true,  by  draining  or  other  artificial  means,  collect  the  sur- 
face water  into  channels,  and  discharge  it  upon  the  land  of  his  neighbor, 
to  his  injury.  This  is  alike  the  rule  of  the  civil  and  common  law. 
Corp.  Jur.  Civ.  39,  tit.  3,  §§  2,  3,  4,  5 ;  Noonan  v.  City  of  Albany,  79 
N.  Y.  475,  35  Am.  Rep.  540 ;  Miller  v.  Laubach,  47  Pa.  154,  86  Am. 
Dec.  521.  But  it  does  not  follow,  we  think,  that  the  owner  of  land 
which  is  so  situated  that  the  surface  water  from  the  lands  above  natur- 
ally descends  upon  and  passes  over  it  may  not,  in  good  faith,  and  for 
the  purpose  of  building  upon  or  improving  his  land,  fill  or  grade  it, 
although  thereby  the  water  is  prevented  from  reaching  it,  and  is  re- 
tained upon  the  lands  above.  There  is  a  manifest  distinction  between 
casting  water  upon  another's  land  and  preventing  the  flow  of  surface 
water  upon  your  own.  Society  has  an  interest  in  the  cultivation  and  im- 
provement of  lands,  and  in  the  reclamation  of  waste  lands.  It  is  also 
for  the  public  interest  that  improvements  shall  be  made,  and  that  towns 
and  cities  shall  be  built.  To  adopt  the  principle  that  the  law  of  na- 
ture must  be  observed,  in  respect  to  surface  drainage,  would,  we  think, 
place  undue  restriction  upon  industry  and  enterprise,  and  the  control 
by  an  owner  of  his  property.  Of  course,  in  some  cases,  the  opposite 
principle  may  cause  injury  to  the  upper  proprietor.  But  the  question 
should,  we  think,  be  determined  largely  upon  considerations  of  public 
policy  and  general  utility.  Which  rule  will,  on  the  whole,  best  sub- 
serve the  public  interests,  and  is  most  reasonable  in  practice? 

For  the  reasons  stated,  we  think  the  rule  of  the  civil  law  should  not 
be  adopted  in  this  state.  The  case  before  us  is  an  illustration  of  the  im- 
policy of  following  it.  Several  house-lots  (substantially  village  lots) 
are  crossed  by  the  depression.  They  must  remain  unimproved  if  the 
right  claimed  by  the  plaintiff  exists.  It  is  better,  we  think,  to  establish 
a  rule  which  will  permit  the  reclamation  and  improvement  of  low  and 
waste  lands  to  one  which  will  impose  upon  them  a  perpetual  servitude, 
for  the  purpose  of  drainage,  for  the  benefit  of  upper  proprietors.  We 
do  not  intend  to  say  that  there  may  not  be  cases  which,  owing  to  special 
conditions  and  circumstances,  should  be  exceptions  to  the  general  rule 
declared.  But  this  case  is  within  it,  and  we  think  the  judgment  below 
should  be  affirmed.  All  concur. 

Judgment  affirmed. 

(The  common-law  rule  has  been  well  expressed  as  follows :  "Surface  water 
is  a  common  enemy  which  every  proprietor  may  fight  and  get  rid  of  as  best 
he  may ;  but  he  must  so  do  it  as  not  unnecessarily  or  unreasonably  to  in- 
jure his  neighbor."  Jessup  v.  Bamford  Bros.  Co.,  66  N.  J.  Law,  641,  51  Atl. 
147,  58  L.  R.  A.  329,  88  Am.  St.  Rep.  502;  Sheehan  v.  Flynn,  59  Minn.  430, 
61  N.  W.  462,  26  L.  R.  A.  632.  For  cases  in  support  of  this  doctrine,  in 
addition  to  those  cited  in  the  principal  case,  see  Id. ;  Morrison  v.  Bucksport 
&  B.  R.  Co.,  67  Me.  353;  Franklin  v.  Durgee,  71  N.  H.  186,  51  Atl.  911,  58 


NUISANCE.  435 

L.  R.  A.  112;  Rathke  v.  Gardner,  134  Mass.  14;  Byrne  v.  Farmlngton,  64 
Conn.  367,  30  Atl.  138;  Mo.  Pac.  R.  Co.  v.  Keys,  55  Kan.  205,  40  Pac.  275, 
i9  Am.  St  Rep.  249 ;  Peck  v.  Goodberlett,  109  N.  Y.  180,  16  N.  E.  350.  For 
the  contrasted  or  so-called  civil  law  rule,  see  Peck  v.  Herrington,  109  111. 
Gil,  50  Am.  Rep.  627;  Garland  v.  Aurin,  103  Tenn.  555,  53  S.  W.  940,  48  L. 
R.  A.  862,  76  Am.  St.  Rep.  69<J,  and  cases  cited;  Leidlein  v.  Meyer,  95  Mich. 
586,  55  N.  W.  367;  cf.  Sanguinetti  v.  Pock,  136  Gal.  466,  69  Pac.  98,  89  Am. 
St.  Rep.  169;  City  of  Waverly  v.  Page,  105  Iowa,  225,  74  N.  W.  938,  40  L. 
R.  A.  465.  The  Supreme  Court  of  the  United  States,  in  cases  coming  before 
it  from  the  different  states,  follows  the  decisions  of  the  local  state  courts, 
though  this  may  involve  apparently  contradictory  decisions.  Walker  v. 
New  Mexico  &  S.  P.  R.  Co.,  1G5  U.  S.  593,  17  Sup.  Ct  421,  41  L.  Ed.  837.) 


2.  Diversion  and  detention  of  stream. 

(46  N.  Y.  511,  7  Am.  Rep.  373.) 

CLINTON  V.  MYERS. 
(Court  of  Appeals  of  New  York.     Nov.  28,  1871.) 

1.  WATER-COURSES— DETENTION  OF  STREAM. 

As  against  a  lower  riparian  owner,  a  person  has  no  legal  right  to  de- 
tain, by  means  of  a  storage  dam  erected  upon  his  land,  such  surplus 
waters  of  a  natural  water-course  crossing  his  lands  as  he  may  not  require 
for  present  use  until  they  may  be  wanted  by  him  in  a  dry  season. 

2.  SAME— INJUNCTION. 

The  fact  that  such  storage  makes  the  lower  riparian  owner's  rights 
more  valuable  is  immaterial  if  he  insists  upon  his  legal  right  to  the 
water  as  it  would  naturally  flow,  and  such  right  is  of  any  value  to  him. 
Nor  will  a  court  of  equity  inquire  as  to  his  motive  in  insisting  on  his 
legal  rights. 

Appeal  from  Supreme  Court,  General  Term,  Sixth  Judicial  District. 

Action  by  William  M.  Clinton  against  Charles  P.  Myers  to  restrain 
defendant  from  opening  the  gate  of  plaintiff's  dam,  and  letting  off  the 
accumulated  waters.  Plaintiff  owned  the  land  forming  the  boundaries 
of  a  natural  pond  and  its  outlet.  The  pond  was  formed  by  springs  and 
by  surface  waters  running  therein  in  rainy  seasons  and  from  melting 
snows.  Plaintiff  owned  a  cotton  factory  some  three  miles  below  this 
pond,  which  was  run  most  of  the  year  by  water  from  other  sources,  and 
he  constructed  a  dam  across  the  outlet  of  the  pond  to  store  the  waters 
for  use  in  the  dry  seasons  when  his  other  supply  was  inadequate  to  run 
his  mill.  Defendant  owned  a  large  farm  between  the  pond  and  plain- 
tiff's factory,  lying  upon  both  sides  of  the  stream  from  the  pond,  upon 
which  stream  he  had  a  water-power  and  saw-mill.  This  action  was 
brought  to  restrain  the  threatened  interference  with  the  gates  of  plain- 
tiff's clam  to  let  off  the  waters  of  the  pond.  The  court  awarded  an  in- 
junction. Defendant  appealed. 


436  LAW  OF  TORTS. 

GROVER,  J.  The  judgment  restraining  the  defendant  from  inter- 
fering with  the  gate  and  other  structures  of  the  plaintiff  at  the  outlet 
of  the  pond  can  be  sustained  only  in  case  the  plaintiff  has  the  right  to 
maintain  the  dam  and  other  structures,  and  thereby  control  the  flow  of 
the  water  in  the  manner  and  for  the  purposes  found  by  the  special  term 
for  which  it  was  controlled  by  him ;  and  for  effecting  which,  the  struc- 
tures were  erected.  From  these  facts  it  appears  that  the  dam  and  struc- 
tures were  erected  at  the  outlet  of  a  natural  pond  of  about  40  acres,  into 
which  one  or  more  small  streams  run,  having  but  a  small  quantity  of 
water  in  a  dry  time  flowing  therein.  But  in  the  wet  seasons — spring 
and  fall — a  much  larger  quantity  flowed  into  and  out  of  the  pond. 
That  the  dam  was  constructed  about  10  feet  above  the  natural  outlet  of 
the  pond,  and,  used  to  detain  the  water  in  the  pond  during  such  portions 
of  the  year  as  the  plaintiff's  factory  was  adequately  supplied  with  water 
from  a  stream  below  the  dam,  (the  latter  a  stream  originating  from  an- 
other source.)  And  when  this  failed  to  furnish  an  adequate  supply,  the 
deficiency  was  supplied  from  the  reservoir,  in  a  steady  and  constant 
manner,  through  a  gate  in  a  trunk  of  about  a  foot  square.  That  the 
waters  have  been  retained  and  used  by  the  plaintiff  with  the  sole  view 
of  economizing  and  utilizing  the  same  to  the  greatest  possible  extent, 
not  viciously,  or  with  any  intent  to  injure,  or  in  any  way  wrong  the  de- 
fendant. It  further  appears  from  such  finding  that  the  water  was  so 
detained  by  the  plaintiff  during  the  wet  seasons  in  the  spring  and  fall, 
until  wanted  for  use  by  the  plaintiff  in  the  dry  seasons  of  winter  and 
summer.  The  judgment,  in  effect,  determines  that  the  plaintiff  has  a 
right  so  to  detain  and  use  the  water,  it  being  necessary  so  to  do,  to  give 
an  adequate  and  profitable  power  to  propel  the  machinery  of  a  factory 
owned  by  him,  situate  about  three  miles  below  the  outlet,  as  against  the 
defendant.  The  defendant  is  the  owner  of  a  parcel  of  land  situated 
upon  both  sides  of  the  stream  between  the  outlet  and  the  plaintiff's 
factory,  upon  which  there  is  a  saw-mill  operated  by  the  defendant  dur- 
ing portions  of  the  year.  The  question  to  be  determined  is  of  great 
importance  to  the  plaintiff,  the  case  showing  that  his  factory  is  of  great 
value,  which  will  be  much  impaired,  if  riot  wholly  destroyed,  by  not 
enjoying  the  right  to  control  and  use  the  water  in  the  manner  claimed 
by  him  in  this  action.  While  this  consideration  should  induce  care  in 
the  examination  of  the  case,  it  can  have  no  weight  in  the  determination 
of  the  legal  rights  of  the  parties.  It  is  the  duty  of  the  court  to  apply 
the  law  as  it  is  to  the  facts  of  every  case,  and  give  to  every  party  his 
legal  rights,  irrespective  of  any  hardship  that  may  be  thereby  caused 
in  any  special  case.  It  is  necessary  to  examine  the  question  as  to  the 
rights  of  riparian  owners,  as  the  judgment  for  the  plaintiff,  to  its  full 
extent,  depends  wholly  upon  those  rights. 

Kent  (3  Comm.  439)  says  that  every  proprietor  of  lands  on  the  banks 
of  a  river  has  naturally  an  equal  right  to  the  use  of  water  which  flows 
in  the  stream  adjacent  to  his  lands,  as  it  was  wont  to  run,  (currere  sole- 


NUISANCE.  437 

bat,)  without  diminution  or  alteration.  No  proprietor  has  a  right 
to  use  the  water,  to  the  prejudice  of  other  proprietors  above  or  below 
him,  unless  he  has  a  prior  right  to  divert  it,  or  a  title  to  some  exclusive 
enjoyment.  He  has  no  property  in  the  water  itself,  but  a  simple 
usufruct  while  it  passes  along.  "Aqua  currit,  et  debet  currere,  ut  currere 
solebat,"  is  the  language  of  the  law.  Though  he  may  use  the  water 
while  it  runs  over  his  land  as  an  incident  to  the  land,  he  cannot  un- 
reasonably detain  it  or  give  it  another  direction,  and  he  must  return  it 
to  its  ordinary  channel  when  it  leaves  his  estate.  In  Tyler  v.  Wilkin- 
son, 4  Mason,  397,  Fed.  Cas.  No.  14,312,  Judge  Story,  after  a  thorough 
examination  of  the  authorities,  says  that  every  proprietor  upon  each 
bank  of  a  river  is  entitled  to  the  land  covered  with  water  in  front  of 
his  bank  to  the  middle  thread  of  the  stream,  etc.  In  virtue  of  this 
ownership,  he  has  a  right  to  the  use  of  the  water  flowing  over  it  in  its 
natural  current,  without  diminution  or  obstruction.  But,  strictly  speak- 
ing, he  has  no  property  in  the  water  itself,  but  a  simple  use  of  it  while 
it  passes  along.  The  consequence  of  this  principle  is  that  no  pro- 
prietor has  a  right  to  use  the  water  to  the  prejudice  of  another.  It  is 
wholly  immaterial  whether  the  party  be  a  proprietor  above  or  below  in 
the  course  of  a  river.  The  right  being  common  to  all  the  proprietors 
on  the  river,  no  one  has  a  right  to  diminish  the  quantity  which  will,  ac- 
cording to  the  natural  current,  flow  to  a  proprietor  below,  or  to  throw 
it  back  upon  a  proprietor  above.  This  is  the  necessary  result  of  the 
perfect  equality  of  right  among  all  the  proprietors  of  that  which  is  com- 
mon to  all.  The  natural  stream  existing  by  the  bounty  of  Providence 
for  the  benefit  of  the  land  through  which  it  flows,  is  an  incident  annexed 
by  operation  of  law  to  the  land  itself.  When  I  speak  of  this  common 
right,  I  do  not  mean  to  be  understood  as  holding  the  doctrine  that  there 
can  be  no  diminution  whatsoever,  and  no  obstruction  or  impediment 
whatsoever,  by  a  riparian  proprietor,  in  the  use  of  the  water  as  it  flows ; 
for  that  would  be  to  deny  any  valuable  use  of  it.  There  may  be  and 
there  must  be  allowed,  of  that  which  is  common  to  all,  a  reasonable 
use.  The  true  test  of  the  principle  and  extent  of  the  use  is  whether  it 
is  to  the  injury  of  the  other  proprietors  or  not.  There  may  be  a  dimi- 
nution in  quantity,  or  retardation  or  acceleration  of  the  natural  current, 
indispensable  for  the  general  and  valuable  use  of  the  water,  properly 
consistent  with  the  existence  of  the  common  right.  The  diminution, 
retardation,  or  acceleration,  not  positively  or  sensibly  injurious,  by 
diminishing  the  value  of  the  common  right,  is  an  implied  element 
in  the  right  of  using  the  stream  at  all.  The  law  here,  as  in  many  other 
cases,  acts  with  a  reasonable  reference  to  public  convenience  and  general 
good,  and  is  not  betrayed  into  a  narrow  strictness,  subversive  of  com- 
mon sense,  nor  into  extravagant  looseness,  which  would  destroy  private 
rights.  A  water-course  begins  ex  jure  naturae,  and,  having  taken  a  cer- 
tain course  naturally,  cannot  be  diverted.  "Aqua  currit,  et  debet  currere, 
ut  currere  solebat,"  is  also  the  language  of  the  ancient  common  law. 


438  LAW  OF  TORTS. 

That  is,  the  water  runs  naturally,  and  should  be  permitted  thus  to  run, 
so  that  all  through  whose  lands  it  runs  may  enjoy  the  privilege  of  using 
it  Ang.  Water-Courses,  §  93.  This  is  sustained  by  numerous  judi- 
cial decisions  and  all  elementary  writers  upon  the  subject. 

How  far  the  natural  flow  of  the  stream  may  be  interfered  with  by  a 
riparian  owner,  to  enable  such  owner  to  utilize  the  stream,  for  the  pur- 
pose of  propelling  machinery,  has  frequently  been  the  subject  of  judi- 
cial examination.  Gould  v.  Duck  Co.,  13  Gray,  443,  may  be  regarded 
as  a  Teading  case  upon  this  point.  In  this  case  the  defendant  had  built 
a  substantial  dam  upon  the  stream,  and  drew  the  water  to  its  factory 
by  means  of  a  canal,  and,  after  using  the  same,  returned  it  to  its  natural 
channel  before  it  reached  the  plaintiff's  land.  The  stream,  at  ordinary 
stages  of  water,  afforded  an  ample  supply  for  the  defendant's  factory ; 
but  in  seasons  of  great  drought  the  defendant  was  unable  to  operate 
its  factory  during  all  the  usual  working  hours  of  each  day,  but  was 
obliged,  in  order  to  create  the  requisite  head  and  supply  of  water,  to 
shut  its  gates  earlier  than  usual  on  some  days,  and  sometimes  for  an  en- 
tire day,  and  thus  arrest  the  usual  flow  of  the  water.  This  was  the  in- 
jury complained- of  by  the  plaintiff,  who  was  the  owner  of  a  mill  upon 
the  stream  directly  below  the  dam,  and  who  was  injured,  to  some  extent, 
by  being  deprived  of  the  use  of  the  water  while  the  natural  flow  was 
thus  arrested.  The  court  held  that  this  use  of  the  water  by  the  defend- 
ant was  not  unreasonable,  and  that,  if  such  use  did  at  times  interfere 
with  the  use  which  the  plaintiff  might  have  made  of  the  water,  it  was 
"damnum  absque  injuria."  The  doctrine  of  this  case  simply  is,  that 
a  party  has  a  right  to  erect  a  dam  across  a  stream  upon  his  land,  and 
such  machinery  as  the  stream,  in  its  ordinary  stages,  is  adequate  to  pro- 
pel; and,  if  the  stream  in  seasons  of  drought  becomes  inadequate 
for  that  purpose,  he  has  a  right  to  detain  the  water  for  such  reasonable 
time  as  may  be  necessary  to  raise  the  requisite  head,  and  accumulate 
such  a  quantity  as  will  enable  him  to  use  the  water  for  the  purpose  of 
his  machinery.  I  think  this  is  the  correct  legal  rule  by  which  to  deter- 
mine the  rights  of  riparian  owners.  This  will  enable  each  owner  to 
make  an  advantageous  use  of  the  water.  The  machinery  must  be  such 
as  the  power  of  the  stream,  in  its  ordinary  stages,  is  adequate  to  pro- 
pel. The  water  in  times  of  drought  may  be  detained  for  such  a  length 
of  time  only  as  is  necessary  to  enable  it  to  be  advantageously  and 
profitably  used  upon  such  machinery.  If  so  used  the  accumulation  will 
be  discharged  in  quantities  not  beyond  the  usual  flow  of  the  stream. 
This  will  enable  every  owner  in  seasons  of  drought,  when  unable  to  use 
the  water  at  all  as  then  naturally  flowing,  to  operate  his  machinery 
to  some  extent  by  retaining  the  water  so  as  to  raise  a  proper  head,  and 
such  quantity  as  to  enable  him  to  use  the  same.  By  so  doing,  he  is  not 
liable  to  an  action  by  an  owner  below,  whose  machinery  does  not  re- 
quire for  its  operation  all  the  water  at  an  ordinary  stage,  but  only  such 
as  naturally  flows  during  seasons  of  drought,  though  to  some  extent 


NUISANCE.  439 

injured  by  being  deprived  of  the  natural  flow.  But  the  machinery  must 
be  adapted  to  the  power  of  the  stream  at  its  usual  stage.  An  owner 
has  no  right  to  erect  machinery  requiring  for  its  operation  more  water 
than  the  stream  furnishes  at  an  ordinary  stage,  and  operate  such  ma- 
chinery by  ponds  full,  discharging  upon  those  below  in  unusual  quanti- 
ties, by  means  of  which  the  latter  are  unable  to  use  it.  Merritt  v. 
Brinkerhoff,  17  Johns.  306,  8  Am.  Dec.  404.  In  Pitts  v.  Lancaster 
Mills,  13  Mete.  (Mass.)  156,  it  was  held  that  an  owner  had  a  right  to 
construct  a  dam  and  detain  the  water  long  enough  to  raise  a  head  by 
filling  it,  permitting  it  then  to  resume  its  natural  flow.  In  Brace  v. 
Yale,  10  Allen,  441,  it  was  held  that  the  erection  of  a  reservoir  dam 
upon  a  small  stream,  thereby  detaining  and  storing  up  the  water  until 
the  owner  of  the  dam  desired  to  use  it,  and  drawing  from  the  pond  and 
using  it  when  he  had  occasion,  was  a  user  of  the  stream  adverse  to  the 
rights  of  the  owners  below,  and,  if  continued  for  a  sufficient  length  of 
time,  refined  into  a  right.  This,  in  effect,  is  an  adjudication  that  an 
owner  has  not  a  right  to  create  a  reservoir  and  store  the  water  therein 
for  future  use,  and  that  by  so  doing  he  violates  the  rights  of  the  owners 
below,  for  the  preservation  of  which  the  law  will  afford  a  remedy. 

The  p'aintiff  cites  Hoy  v.  Sterrett,  2  Watts,  327,  27  Am.  Dec.  313; 
Hetrich  v.  Deachler,  6  Pa.  32;  and  Hartzall  v.  Sill,  12  Pa.  248, — as 
sustaining  the  right  to  store  the  water  for  future  use  claimed  by  the 
plaintiff.  Hetrich  v.  Deachler  simply  holds  that  the  reasonableness  of 
the  detention  of  water  by  the  owner  above  to  the  injury  of  the  owner 
below,  depending  as  it  must  on  the  nature  and  size  of  the  stream  as 
well  as  the  business  to  which  it  was  subservient,  was  a  question  of  fact 
for  the  jury,  it  being  impossible  to  make  any  general  rule.  Hoy  v. 
Sterrett,  so  far  as  the  questions  involved  have  any  bearing  upon  the 
present  case,  is  the  same  as  Hetrich  v.  Deachler.  In  Hartzall  v.  Sill, 
12  Pa.  248,  it  was  held  that  the  proprietor  of  a  mill  above  had  the 
right  to  detain  the  water  long  enough  for  the  proper  use  of  his  mill ; 
and,  if  by  so  doing  the  owner  below  was  injured,  it  was  "damnum 
absque  injuria ;"  and  whether  longer  detained  than  necessary  was  a 
question  of  fact  for  the  jury.  This  is  an  entirely  different  question 
from  that  involved  in  the  present  case, — that  is,  whether,  when  the 
stream  furnishes  more  water  than  is  necessary  to  run  a  mill,  the  owner 
has  a  right,  by  means  of  a  reservoir  dam,  to  store  up  such  surplus  water 
and  detain  it  until  he  shall  want  it  for  use  in  a  dry  season.  Whaler  v. 
Ahl,  29  Pa.  98,  is  in  conflict  with  the  law  of  this  state.  In  this  case 
the  defendant  had  erected  machinery  that  the  usual  quantity  of  water  in 
the  stream  was  inadequate  to  propel.  It  was  held  that  he  might  erect 
a  dam,  accumulate  the  water,  and  with  such  accumulation  run  his  ma- 
chinery, discharging  the  water  in  unusual  quantities  upon  the  owner 
below.  This  is  in  direct  conflict  with  Merritt  v.  Brinkerhoff,  17  Johns. 
320,  8  Am.  Dec.  404.  This  right,  claimed  by  the  plaintiff,  to  detain 
such  surplus  water  of  the  stream  as  he  may  not  require  for  present  use 


440  LAW  OF  TORTS. 

until  wanted  in  a  dry  season,  has  no  foundation  in  the  law,  and  is  in 
direct  conflict  with  the  maxim,  aqua  currit,  etc.,  supra. 

But  it  is  insisted  that  this  detention  does  no  material  injury  to  the  de- 
fendant, but  that,  on  the  contrary,  his  power  is  made  more  valuable  by 
this  use  of  the  water.  The  answer  to  this  is  that  he  must  be  the  judge 
whether  he  will  accept  of  any  such  benefit.  He  is  entitled  to  the  water 
and  to  its  use  for  sawing  in  the  spring,  according  to  the  natural  flow, 
and  is  not  obliged  to  accept  and  use  it  for  that  or  any  other  purpose  dur- 
ing the  drought  of  summer.  Again,  it  is  said,  and  the  fact  is  so  found 
by  the  special  term,  that  the  defendant  insists  upon  his  right  to  the 
natural  flow  of  the  water  in  the  stream  from  a  bad  motive,  and  for  the 
purpose  of  annoying  the  plaintiff.  This  is  immaterial.  Courts  have 
no  power  to  deny  to  a  party  his  legal  right  because  it  disapproves  his 
motives  for  insisting  upon  it.  The  use  of  the  water  by  the  plaintiff,  to 
the  extent  awarded  by  the  judgment,  and  protected  by  the  injunction, 
has  not  continued  20  years.  The  plaintiff  has  acquired  no  right  by 
prescription.  Whether  he  has  any  such  a  right  to  detain  the  water  by 
a  five-feet  dam,  as  held  by  the  court  below,  is  a  grave  question  upon 
the  evidence ;  but,  as  its  determination  is  not  necessary,  and  as  the  evi- 
dence may  be  different  upon  another  trial,  I  shall  not  examine  or  pass 
upon  it.  The  counsel  for  the  plaintiff  cites  from  the  opinion  of  Wood- 
ruff, J.,  in  Corning  v.  Nail  Factory,  40  N.  Y.  220,  the  proposition  that, 
if  it  was  clear  that  the  restoration  of  the  water  was  of  no  value  to  the 
plaintiff,  the  case  would  not  call  for  equitable  interference.  Assuming 
this  to  be  correct,  it  has  no  application  to  the  present  case.  It  may  be 
true  that  equity  will  not  interfere  to  secure  to  a  party  a  legal  right  of 
no  value  to  him,  but  leave  him  to  his  remedy  at  law.  But  interfering 
to  restrain  him  from  enforcing  such  a  right  on  the  ground  that  it  is  of 
no  value,  is  quite  another  affair.  That  is  the  present  case.  That  equity 
will  not  restrain  a  party  from  enforcing  his  legal  right  upon  any  such 
ground  is  too  clear  for  discussion.  There  was  nothing  in  the  evidence 
or  finding  showing  that  the  defendant  was  estopped  from  asserting  his 
right  to  the  natural  flow  of  the  water.  The  judgment  appealed  from 
must  be  reversed,  and  a  new  trial  ordered ;  costs  to  be  determined  by 
the  court  in  the  decision  of  the  case.  All  concur,  except  PECKHAM, 
J.,  not  voting. 

Judgment  reversed. 

(See  also  Strobel  v.  Kerr  Salt  Co.,  164  N.  Y.  303,  58  N.  E.  142.  51  L.  R.  A. 
687,  79  Am.  St.  Rep.  643  [a  valuable  decision] ;  Colrick  v.  Swinburne,  105  N. 
Y.  503,  12  N.  E.  427  [diversion  of  a  spring] ;  Bullard  v.  Saratoga  Co..  77  N. 
Y.  525;  Messinger's  Appeal,  109  Pa.  285,  4  Atl.  162;  Moulton  v.  Water  Co., 
137  Mass.  163;  Embrey  v.  Owen,  6  Exch.  353;  Davis  v.  Getcbell,  50  Me. 
602,  79  Am.  Dec.  636.) 


NUISANCE.  441 

3.  Pollution  of  water. 

(13  Allen,  16,  90  Am.  Dec.  172.) 

MERR1F1ELD  v.  LOMBARD. 

(Supreme  Judicial  Court  of  Massachusetts.    Oct.  Term,  1866.) 

WATER- COURSES— POLLUTION  OF  STREAM. 

The  pollution  of  a  stream  of  water,  so  as  to  prevent  the  use  of  it  for 
any  of  the  reasonable  and  proper  purposes  to  which  running  water  is 
usually  applied,  such  as  irrigation,  the  propulsion  of  machinery,  or 
consumption  for  domestic  use,  is  an  infringement  of  the  rights  of  other 
riparian  owners,  and  creates  a  nuisance  for  which  those  thereby  injured 
are  entitled  to  a  remedy.  Permitting  poisonous  and  corrosive  substances 
to  run  into  the  stream,  which  corrode  and  destroy  the  machinery  of  a 
lower  proprietor,  will  be  enjoined. 

Case  reserved. 

Bill  in  equity  by  William  T.  Merrifield  against  Nathan  A.  Lombard 
for  an  injunction  to  restrain  defendant  from  throwing  vitriol  and  other 
noxious  substances  in  a  natural  water-course,  which  so  corrupted  the 
water  that  it  corroded,  injured,  and  destroyed  plaintiff's  engine  and  boil- 
ers used  in  his  factory.  The  parties  were  riparian  owners  on  the  same 
stream.  Defendant  had  used  the  stream  for  more  than  20  years,  but 
the  injurious  effects  of  the  substances  thrown  in  the  stream  had  not 
become  apparent  save  in  the  last  8  years  before  the  suit  was  brought. 
At  the  trial  the  case  was  reserved  by  the  judge  for  the  supreme  court. 

BIGELOW,  C.  J.  The  case,  as  made  by  the  bill,  answer,  and  agreed 
facts,  establishes  a  clear  invasion  of  the  plaintiff's  right  by  the  de- 
fendant. The  law  requires  of  a  party  through  whose  land  a  natural 
water-course  passes  that  he  should  use  the  water  in  such  manner  as  not 
to  destroy,  impair,  or  materially  affect  the  beneficial  appropriation  of 
it  by  the  predictors  of  land  below  on  the  same  stream.  Each  riparian 
owner  has  the  right  to  use  the  water  for  any  reasonable  and  proper  pur- 
pose, as  it  flows  through  his  land,  subject  to  the  restriction  that  he  shall 
not  thereby  deprive  others  of  a  like  use  and  enjoyment  of  the  stream 
as  it  runs  through  their  land.  Any  diversion  or  obstruction  of  the 
water  which  substantially  diminishes  the  volume  of  the  stream,  so  that 
it  does  not  flow  ut  currere  solebat,  or  which  defiles  and  corrupts  it  to 
such  a  degree  as  essentially  to  impair  its  purity  and  prevent  the  use 
of  it  for  any  of  the  reasonable  and  proper  purposes  to  which  running 
water  is  usually  applied,  such  as  irrigation,  the  propulsion  of  machinery, 
or  consumption  for  domestic  use,  is  an  infringement  of  the  right  of 
other  owners  of  land  through  which  a  water-course  runs,  and  creates 
a  nuisance  for  which  those  thereby  injured  are  entitled  to  a  remedy. 
An  injury  to  the  purity  or  quality  of  the  water,  to  the  detriment  of  other 
riparian  owners,  constitutes,  in  legal  effect,  a  wrong  and  an  invasion  of 
private  right,  in  like  manner  as  a  permanent  obstruction  or  diversion  of 


442  LAW  OF  TORTS. 

the  water.  It  tends  directly  to  impair  and  destroy  the  use  of  the  stream 
by  others  for  reasonable  and  proper  purposes.  Mason  v.  Hill,  2,  Nev. 
&  M.  747,  5  Barn.  &  Adol.  I ;  Wood  v.  Waud,  13  Jur.  472,  3  Exch.  748 ; 
3  Kent,  Comm.  (6th  Ed.)  439;  Ang.  Water-Courses,  §  136. 

It  is  conceded  in  the  present  case  that,  by  the  mode  in  which  the  de- 
fendant conducts  his  business,  a  large  quantity  of  poisonous  and  cor- 
rosive substances  is  permitted  to  run  into  the  water  of  the  stream  on 
which  the  plaintiff's  and  defendant's  manufactories  are  both  situated, 
which  defiles  and  corrupts  the  water  to  such  an  extent  that  the  ma- 
chinery of  the  plaintiff  is  corroded  and  destroyed,  and  the  use  of  the 
water  for  reasonable  and  proper  purposes  is  impaired  and  prevented. 
We  know  of  no  rule  or  principle  of  law  by  which  such  a  mode  of  ap- 
propriation of  a  running  stream,  in  the  absence  of  any  proof  of  a  para- 
mount right  or  title,  can  be  justified  or  excused,  as  against  a  riparian 
owner  of  land  on  the  same  stream  below.  No  fact  appears  in  this  case 
from  which  any  right  by  grant,  prescription,  or  adverse  use  is  shown  to 
exist,  by  virtue  of  which  the  defendant  can  claim  to  use  the  stream 
otherwise  than  as  a  riparian  owner,  entitled  to  the  natural  and  ordinary 
rights  and  privileges  which  usually  and  legally  attach  and  belong  to  the 
owner  of  land  on  the  banks  of  a  water-course.  It  is  clear,  therefore, 
that  he  has  been  guilty  of  an  infraction  of  the  plaintiff's  rights. 

The  right  of  the  latter  to  equitable  relief  is  clear  and  unquestionable. 
The  acts  of  the  defendant  tend  to  create  a  nuisance  of  a  continuous  and 
constantly  accruing  nature,  for  which  an  action  of  law  can  furnish  no 
adequate  relief.  Ang.  Water-Courses,  §§  444-446;  Bemis  v.  Upham, 
13  Pick.  169;  Hill  v.  Sayles,  12  Cush.  454. 

Perpetual  injunction  granted. 

(See  also  Prentice  v.  Geiger,  74  N.  Y.  341 ;  Young  v.  Bankler  Distillery 
Co.  [1893]  A.  C.  691;  Lockwood  Co.  v.  Lawrence,  77  Me.  297,  52  Am.  Rep. 
763;  Dyeing  Co.  v.  Wanskuck,  13  R.  I.  611;  Woodyear  v.  Schaefer,  57  Md. 
1,  40  Am.  Rep.  419;  Carhart  v.  Gaslight  Co.,  22  Barb.  297;  Hayes  v.  Wal- 
dron,  44  N.  H.  580,  84  Am.  Dec.  105 ;  Holsman  v.  Bleaching  Co.,  14  N.  J.  Eq. 
335.) 


(L.  R.  29  Ch.  Div.  115.) 

BALLARD  v.  TOMLINSON  (in  part) 

(Feb.  17,  1885.) 

UNDERGROUND  WATER— POLLUTION  OF  WELL— NUISANCE— INJUNCTION. 

No  one  has  a  right  to  use  his  own  land  in  such  a  way  as  to  be  a 
nuisance  to  his  neighbour,  and  therefore  if  a  man  puts  filth  or  poisonous 
matter  on  his  land  he  must  take  care  that  it  does  not  escape  so  as  to 
poison  water  which  his  neighbor  has  a  right  to  use,  although  his  neigh- 
bor may  have  no  property  in  such  water  at  the  time  it  is  fouled. 

The  plaintiff  and  defendant  were  adjoining  landowners,  and  had  each 
a  deep  well  on  his  own  laud,  the  plaintiff's  land  being  at  a  lower  level 


NUISANCE.  443 

than  the  defendant's.  The  defendant  turned  sewage  from  his  house 
into  his  well,  and  thus  polluted  the  water  that  percolated  underground 
from  the  defendant's  to  the  plaintiffs  land,  and  consequently  the  water 
which  came  into  the  plaintiff's  well  from  such  percolating  water  when 
he  used  his  well  by  pumping  came  adulterated  with  the  sewage  from  the 
defendant's  well. 

Held,  that  the  plaintiff  had  a  right  of  action  against  the  defendant  for  so 
polluting  the  source  of  supply,  although  until  the  plaintiff  had  appropri- 
ated it  he  had  no  property  in  the  percolating  water  under  his  land,  and 
although  he  appropriated  such  water  by  the  artificial  means  of  pumping. 

Action  for  an  injunction  to  restrain  defendant  from  permitting  his 
well  to  be  so  used  as  to  pollute  water  in  or  coming  to  plaintiff's  well, 
and  for  damages  by  reason  of  plaintiff's  well  and  the  source  of  supply 
thereto  having  been  polluted  by  the  drainage  and  sewage  from  defend- 
ant's premises.  From  a  judgment  for  defendant,  plaintiff  appeals. 
Reversed. 

BRETT,  M.  R.  The  defendant  Tomlinson  was  possessed  of  a  well 
upon  his  own  property,  which  at  one  time  he  used  merely  as  a  well,  but 
afterwards  in  a  manner  inconsistent  with  its  being  merely  a  well,  as  he 
allowed  the  sewage  arising  from  the  use  of  his  buildings  to  go  into  the 
shaft  of  such  well.  Now  it  seems  to  me  that  the  shaft  of  that  well  is  an 
artificial  thing,  and  that  the  defendants,  therefore,  collected  a  quantity 
of  sewage  into  an  artificial  reservoir.  The  plaintiff,  at  a  considerable 
distance  from  this  well  (the  distance  to  my  mind  is  wholly  immaterial), 
has  a  well  on  his  own  property  of  considerable  depth,  which  is  lower 
than  the  bottom  of  this  artificial  shaft  or  well  of  the  defendants.  The 
collected  sewage  in  the  artificial  shaft  on  the  defendants'  property  has 
gone  through  the  sides  or  bottom  of  this  well  into  what  is  called  the 
percolating  water  below  the  defendants'  land.  It  is  said  on  behalf  of 
the  defendants  that,  but  for  the  mode  in  which  the  plaintiff  uses  his  well 
by  pumping,  the  sewage  in  the  artificial  shaft  on  the  defendants'  prop- 
erty would  not  have  gone  into  the  percolating  water  beneath  his  land, 
or,  if  it  had,  it  would  have  remained  on  his  land,  or,  at  all  events,  it 
never  would  have  gone  into  the  plaintiff's  well.  In  the  result,  when  the 
plaintiff  used  his  own  well  by  means  of  the  mechanical  pump,  it  is  clear 
that  the  water  which  then  came  into  his  well  from  the  percolating  water 
beneath  his  own  land  came  there  adulterated  by  the  sewage  which  had 
been  in  the  artificial  shaft  in  the  defendants'  well. 

Then  arises  the  question  whether  the  plaintiff,  under  the  circumstan- 
ces, can  maintain  an  action  against  the  defendants?  Now,  what  are 
the  rights  of  the  parties?  It  seems  to  my  mind  to  be  clear  from  the 
decisions  that  no  one  has  at  any  time  any  property  in  water  percolating 
below  the  surface  of  the  earth,  even  when  it  is  under  his  own  land ;  but 
it  is  equally  clear  that  everybody  has  a  right  to  appropriate  that  perco- 
lating water,  at  least  whilst  it  is  under  his  own  land,  to  the  extent  that 
he  may  take  it  all  so  as  to  prevent  any  of  it  going  on  the  land  of  his 


444  LAW  OF  TORTS. 

neighbor.  But  his  neighbor  below  him,  according  to  the  flow  of 
water,  has  an  equal  right  before  the  person  above  has  appropriated  it 
to  take  it  all.  He  has  a  right  to  take  the  water  from  the  percolating 
stream  under  his  own  land  to  this  extent,  that  he  may  thereby  cause  the 
water  which  is  under  the  land  above  him  to  come  on  his  own  land  when 
it  otherwise  would  not,  and  then  to  take  that,  and  so  on,  until  he  has 
absolutely  dried  the  land  above  him.  This  percolating  water  below  the 
surface  of  the  earth  is  therefore  a  common  reservoir  or  source  in  which 
nobody  has  any  property,  but  of  which  everybody  has,  as  far  as  he  can, 
the  right  of  appropriating  the  whole. 

Then  arises  the  question,  has  any  one  of  those  who  have  an  unlimited 
right  of  appropriation  a  right  to  contaminate  that  common  reservoir 
or  source,  as  against  those  who  have  an  equal  right  with  him  to  ap- 
propriate when  he  does  not,  or  is  he  bound  not  to  do  anything  which 
will  prevent  anybody  to  whom  that  unlimited  right  of  appropriation 
shall  come  to  have  such  water  unaltered  in  quality?  Now,  it  has  been 
said  by  the  Solicitor  General  in  his  clear  argument  that  when  the  de- 
fendants pollute  this  common  source  under  their  own  land  they  do  not 
pollute  any  water  in  which  the  plaintiff  has  any  property.  That  is  quite 
true.  The  plaintiff  has  no  property  in  that  water  whilst  it  is  under  the 
defendants'  land,  nor,  indeed,  whilst  it  is  under  his  own  land ;  and  if 
all  that  could  be  said  was  that  that  common  source  was  contaminated 
before  the  plaintiff  had  appropriated  any  part  of  it,  the  plaintiff  could 
not,  to  my  mind,  maintain  any  action  in  respect  of  that  contamination. 
Suppose  a  man  had  tapped  this  common  source  some  distance  off  his 
own  land  for  the  purpose  of  experiment,  and  found  it  was  contaminated 
before  it  would  come  under  his  own  land.  I  think  under  those  circum- 
stances he  could  not  maintain  an  action,  because  he  had  not  appropriated 
the  water,  and  therefore  no  injury  was  done  to  him  at  that  time.  But 
it  does  not  seem  to  me  to  follow  from  that  that  he  cannot  maintain  an 
action  when  water  which  he  has  appropriated  has  been  contaminated 
by  something  which  another  person  has  done  to  that  common  source. 
In  other  words,  it  seems  to  me  that  although  nobody  has  any  property 
in  the  common  source,  yet  everybody  has  a  right  to  appropriate  it,  and 
to  appropriate  it  in  its  natural  state,  and  no  one  of  those  who  have  a 
right  to  appropriate  it  has  a  right  to  contaminate  that  source  so  as  to 
prevent  his  neighbour  from  having  the  full  value  of  his  right  of  appro- 
priation. 

Then  the  next  point  taken  by  the  Solicitor  General  was  this :  Assum- 
ing it  to  be  true  that  there  is  such  right  to  appropriate,  yet  if  the  person 
who  has  such  right  only  appropriates  by  artificial  means,  and  does  so 
to  such  an  extent  that  if  he  did  not  use  those  artificial  means  the  water 
he  would  take  would  not  be  contaminated,  then  the  polluted  water  must 
be  said  to  be  appropriated  by  him  in  that  state  by  his  own  act,  and  there- 
fore he  cannot  maintain  the  action.  I  cannot  think  that  is  a  true  propo- 
sition. The  principle  of  natural  user  does  not  apply  at  all.  The  plain- 


NUISANCE.  44o 

tiff,  if  he  has  a  right  to  use  anything  in  nature,  has  a  right  to  exercise 
that  user  by  all  the  skill  and  invention  of  which  man  is  capable,  and  it 
seems  to  me  that  as  long  as  the  plaintiff  uses  only  lawful  means  as 
against  his  neighbor,  however  ingenious  or  however  artificial  those 
means  may  be,  his  right  to  appropriate  the  common  source  is  not  di- 
minished, because  he  uses  the  most  artificial  or  the  most  ingenious 
methods.  Therefore,  however  he  may  appropriate  the  water  from  the 
common  source  by  the  use  of  such  artificial  means,  he  has  a  right  to 
have  that  common  source  uncontaminated  by  any  act  of  any  other  per- 
son. Neither  does  it  matter  whether  the  parties  are  or  not  con- 
tiguous neighbors.  If  it  can  be  shown  in  fact  that  the  defendants  have 
adulterated  or  fouled  the  common  source,  it  signifies  not  how  far  the 
plaintiff's  land  is  from  their  land. 

The  nearest  case  to  the  present  I  take  to  be  the  case  of  Womersley  v. 
Church,  17  L.  T.  (N.  S.)  190.  I  think  that  that  case  does  show  that  the 
first  proposition  of  the  Solicitor  General  is  wrong,  but  I  do  not  think 
that  it  governs  the  second  point  taken  by  him.  I  think  that  the  second 
point  is  partly  noticed  in  the  case  of  Whaley  v.  Laing,  2  H.  &  N.  476, 
3  H.  &  N.  675 ;  but  it  does  not,  in  my  opinion,  want  any  authority.  I 
disagree  with  the  decision  of  Mr.  Justice  Pearson  on  this  ground  that, 
although  nobody  has  any  property  in  the  percolating  water,  yet  such 
water  is  a  common  source  which  everybody  has  a  right  to  appropriate, 
and  that,  therefore,  no  one  is  justified  in  injuring  the  right  of  appropria- 
tion which  everybody  else  has. 

The  other  Judges  concur. 

(See  Upjohn  v.  Richland,  46  Mich.  542,  9  N.  W.  845,  41  Am.  Rep.  178 ;  Good 
v.  Altoona  City,  1(52  Pa.  493,  29  Atl.  741,  42  Am.  St.  Rep.  840;  Ball  v.  Xye, 
99  Mass.  582,  97  Am.  Dec.  56:  Kinnaird  v.  Standard  Oil  Co.,  89  Ky.  468,  12 
S.  W.  937,  7  L.  R.  A.  451,  25  Am.  St.  Rep.  545;  Beatrice  Gas  Co.  v.  Thomas, 
41  Neb.  602,  59  N.  W.  925,  43  Am.  St.  Rep.  711;  Pottstown  Gas  Co.  v.  Murphy, 
39  Pa.  257.) 


4.  Noise. 

(146  Mass.  349,  15  N.  E.  768,  4  Am.  St.  Rep.  316.) 

ROGERS  v.  ELLIOTT. 
(Supreme  Judicial  Court  of  Massachusetts.     M.arch  3,  1888.) 

NUISANCES— CHUBCH  BELLS— ACTION  FOB  DAMAGES. 

A  person  who,  by  reason  of  a  sunstroke,  is  peculiarly  susceptible  to 
the  noise  caused  by  the  ringing  of  a  church  bell,  situated  directly  oppo- 
site his  house  in  a  thickly  populated  district,  cannot,  in  the  absence  of 
evidence  of  express  malice,  or  that  the  bell  was  objectionable  to  persons 
of  ordinary  health  and  strength,  maintain  an  action  against  the  custo- 
dian of  such  church  for  sufferings  caused  by  the  ringing  of  such  bell. 


44G  LAW   OF   TORTS. 

Exceptions  from  Superior  Court,  Barnstable  County ;  Staples,  Judge. 

Action  of  tort  by  Jesse  Rogers,  Jr.,  against  Thomas  P.  Elliott,  pastor 
of  St.  Peter's  Roman  Catholic  Church  in  Provincetown,  to  recover  dam- 
ages, the  plaintiff  alleging  that  in  consequence  of  the  continued  ring- 
ing of  the  bell  on  said  church,  by  the  orders  of  the  defendant,  the  plain- 
tiff was  put  to  great  pain  and  suffering.  It  appeared  at  the  trial  that 
plaintiff  was  lying  in  bed  at  his  father's  house  opposite  the  church,  in 
a  thickly  settled  district,  suffering  from  a  sunstroke,  and  that  the  ring- 
ing of  the  bell  threw  him  into  convulsions ;  that  defendant  refused 
the  request  of  plaintiff's  physician  not  to  ring  the  bell,  and  insisted  on 
ringing  it,  saying  that  he  should  not  stop  ringing  the  bell  for  anybody, 
even  if  he  knew  a  person  was  sick,  and  the  ringing  would  kill  him.  A 
verdict  was  directed  for  defendant,  and  plaintiff  alleged  exceptions. 

KNOWLTON,  J.  The  defendant  was  the  custodian  and  authorized 
manager  of  property  of  the  Roman  Catholic  Church  used  for  religious 
worship.  The  acts  for  which  the  plaintiff  seeks  to  hold  him  responsible 
were  done  in  the  use  of  this  property,  and  the  sole  question  before  us 
is  whether  or  not  that  use  was  unlawful.  The  plaintiff's  case  rests  upon 
the  proposition  that  the  ringing  of  the  bell  was  a  nuisance.  The  con- 
sideration of  this  proposition  involves  an  inquiry  into  what  the  defend- 
ant could  properly  do  in  the  use  of  the  real  estate  which  he  had  in 
charge,  and  what  was  the  standard  by  which  his  rights  were  to  be  meas- 
ured. It  appears  that  the  church  was  built  upon  a  public  street,  in  a 
thickly-settled  part  of  the  town;  and  if  the  ringing  of  the  bell  on 
Sundays  had  materially  affected  the  health  or  comfort  of  all  in  the 
vicinity,  whether  residing  or  passing  there,  this  use  of  the  property 
would  have  been  a  public  nuisance,  for  which  there  would  have  been  a 
remedy  by  indictment.  Individuals  suffering  from  it  in  their  persons  or 
their  property  could  have  recovered  damages  for  a  private  nuisance. 
Wesson  v.  Iron  Co.,  13  Allen,  95,  90  Am.  Dec.  181.  In  an  action  of 
this  kind,  a  fundamental  question  is,  by  what  standard,  as  against  the 
interests  of  a  neighbor,  is  one's  right  to  use  his  real  estate  to  be  meas- 
ured? In  densely  populated  communities,  the  use  of  property  in  many 
ways  which  are  legitimate  and  proper  necessarily  affects  in  greater  or 
less  degree  the  property  or  persons  of  others  in  the  vicinity.  In  such 
cases  the  inquiry  always  is,  when  rights  are  called  in  question,  what  is 
reasonable  tinder  the  circumstances?  If  a  use  of  property  is  objection- 
able solely  on  account  of  the  noise  which  it  makes,  it  is  a  nuisance,  if  at 
all,  by  reason  of  its  effect  upon  the  health  or  comfort  of  those  who  are 
within  hearing.  The  right  to  make  a  noise  for  a  proper  purpose  must 
be  measured  in  reference  to  the  degree  of  annoyance  which  others  may 
reasonably  be  required  to  submit  to.  In  connection  with  the  importance 
of  the  business  from  which  it  proceeds,  that  must  be  determined  by  the 
effect  of  noise  upon  people  generally,  and  not  upon  those,  on  the  one 
hand,  who  are  peculiarly  susceptible  to  it,  or  those  on  the  other,  who, 


NUISANCE.  447 

by  long  experience,  have  learned  to  endure  it  without  inconvenience; 
not  upon  those  whose  strong  nerves  and  robust  health  enable  them  to 
endure  the  greatest  disturbances  without  suffering,  nor  upon  those 
whose  mental  or  physical  condition  makes  them  painfully  sensitive  to 
everything  about  them.  That  this  must  be  the  rule  in  regard  to  public 
nuisances  is  obvious.  It  is  the  rule  as  well,  and  for  reasons  nearly,  if 
not  quite,  as  satisfactory,  in  relation  to  private  nuisances.  Upon  a 
question  whether  one  can  lawfully  ring  his  factory  bell,  or  run  his  noisy 
machinery,  or  whether  the  noise  will  be  a  private  nuisance  to  the  occu- 
pant of  a  house  near  by,  it  is  necessary  to  ascertain  the  natural  and  prob- 
able effect  of  the  sound  upon  ordinary  persons  in  that  house — not  how 
it  will  affect  a  particular  person  who  happens  to  be  there  to-day,  or 
who  may  chance  to  come  to-morrow.  Fay  v.  Whitman,  100  Mass.  76 ; 
Davis  v.  Sawyer,  133  Mass.  289,  43  Am.  Rep.  519;  Walter  v.  Selfe, 
4  De  Gex  &  S.  323;  Soltau  v.  De  Held,  2  Sim.  (N.  S.)  133;  Smelting 
Co.  v.  Tipping,  1 1  H.  L.  Cas.  642.  In  Walter  v.  Selfe,  Vice-Chancellor 
Knight  Bruce,  after  elaborating  his  statement  of  the  rule,  concludes  as 
follows :  "They  have,  I  think,  established  that  the  defendant's  intend- 
ed proceeding  will,  if  prosecuted,  abridge  and  diminish  seriously  and 
materially  the  ordinary  comfort  of  existence  to  the  occupier  and  in- 
mates of  the  plaintiff's  house,  whatever  their  rank  or  station,  whatever 
their  age  or  state  of  health."  It  is  said  by  Lord  Romilly,  master  of  the 
rolls,  in  Crump  v.  Lambert,  L.  R.  3  Eq.  408,  that  "the  real  question  in 
all  the  cases  is  the  question  of  fact,  viz.,  whether  the  nuisance  is  such  as. 
materially  to  interfere  with  the  ordinary  comfort  of  human  existence." 
In  the  opinion  in  Sparhawk  v.  Railway  Co.,  54  Pa.  401,  these  words  are 
used :  "It  seems  to  me  that  the  rule  expressed  in  the  cases  referred  to 
is  the  only  true  one  in  judging  of  injuries  from  alleged  nuisances,  viz., 
such  as  naturally  and  necessarily  result  to  all  alike  who  come  within 
their  influence."  In  the  case  of  Westcott  v.  Middleton,  43  N.  J.  Eq. 
478,  ii  Atl.  490,  (decided  December  9,  1887,)  it  appeared  that  the  de- 
fendant carried  on  the  business  of  an  undertaker,  and  the  windows  of 
the  plaintiff's  house  looked  out  upon  his  yard,  where  boxes  which  had 
been  used  to  preserve  the  bodies  of  the  dead  were  frequently  washed, 
and  where  other  objects  were  visible,  and  other  work  was  going  on, 
which  affected  the  tender  sensibilities  of  the  plaintiff,  and  caused  him 
great  discomfort.  Vice-Chancellor  Bird,  in  dismissing  the  bill  for  an 
injunction  against  carrying  on  the  business  there,  said:  "The  inquiry 
inevitably  arises,  if  a  decision  is  rendered  in  Mr.  Westcott's  favor 
because  he  is  so  morally  or  mentally  constituted  that  the  particular  busi- 
ness complained  of  is  an  offense  or  a  nuisance  to  him,  or  destructive 
to  his  comfort,  or  his  enjoyment  of  his  home,  how  many  other  cases 
will  arise  and  claim  the  benefit  of  the  same  principle,  however  different 
the  facts  may  be,  or  whatever  may  be  the  mental  condition  of  the  party 
complaining?  *  *  *  A  wide  range  has  indeed  been  given  to  courts 
of  equity,  in  dealing  with  these  matters,  but  I  can  find  no  case  where  the 


448  LAW   OF   TORTS. 

court  has  extended  aid,  unless  the  act  complained  of  was,  as  I  have 
above  said,  of  a  nature  to  affect  all  reasonable  persons,  similarly  situat- 
ed, alike."  If  one's  right  to  use  his  property  were  to  depend  upon  the 
effect  of  the  use  upon  a  person  of  peculiar  temperament  or  disposition, 
or  upon  one  suffering  from  an  uncommon  disease,  the  standard  for 
measuring  it  would  be  so  uncertain  and  fluctuating  as  to  paralyze 
industrial  enterprises.  The  owner  of  a  factory  containing  noisy  ma- 
chinery, with  dwelling-houses  all  about  it,  might  find  his  business  law- 
ful as  to  all  but  one  of  the  tenants  of  the  houses,  and  as  to  that  one,  who 
dwelt  no  nearer  than  the  others,  it  might  be  a  nuisance.  The  character 
of  his  business  might  change  from  legal  to  illegal,  or  illegal  to  legal, 
with  every  change  of  tenants  of  an  adjacent  estate,  or  with  an  arrival  or 
departure  of  a  guest  or  boarder  at  a  house  near  by ;  or  even  with  the 
wakefulness  or  the  tranquil  repose  of  an  invalid  neighbor  on  a  par- 
ticular night.  Legal  rights  to  the  use  of  property  cannot  be  left  to  such 
uncertainty.  When  an  act  is  of  such  a  nature  as  to  extend  its  influence 
to  those  in  the  vicinity,  and  its  legal  quality  depends  upon  the  effect  of 
that  influence,  it  is  as  important  that  the  rightfulness  of  it  should  be 
tried  by  the  experience  of  ordinary  people,  as  it  is,  in  determining  a 
question  as  to  negligence,  that  the  test  should  be  the  common  care  of 
persons  of  ordinary  prudence,  without  regard  to  the  peculiarities  of  him 
whose  conduct  is  on  trial. 

In  the  case  at  bar  it  is  not  contended  that  the  ringing  of  the  bell 
for  church  services  in  the  manner  shown  by  the  evidence  materially 
affected  the  health  or  comfort  of  ordinary  people  in  the  vicinity,  but 
the  plaintiff's  claim  rests  upon  the  injury  done  him  on  account  of  his 
peculiar  condition.  However  his  request  should  have  been  treated  by 
the  defendant  upon  considerations  of  humanity,  we  think  he  could  not 
put  himself  in  a  place  of  exposure  to  noise,  and  demand  as  of  legal 
right  that  the  bell  should  not  be  used.  The  plaintiff,  in  his  brief,  con- 
cedes that  there  was  no  evidence  of  express  malice  on  the  part  of  the 
defendant,  but  contends  that  malice  was  implied  in  his  acts.  In  the 
absence  of  evidence  that  he  acted  wantonly,  or  with  express  malice, 
this  implication  could  not  come  from  his  exercise  of  his  legal  rights. 
How  far,  and  under  what  circumstances,  malice  may  be  material  in 
cases  of  this  kind,  it  is  unnecessary  to  consider. 

Judgment  on  the  verdict. 

(See  also  Lord  v.  De  Witt  [C.  C.]  116  Fed.  713;  Davis  v.  Sawyer,  133  Mass. 
289 ;  Soltau  v.  De  Held,  2  Sim.  [N.  S.]  133 ;  McKeon  v.  See,  51  N.  Y.  300,  10 
Am.  Rep.  659 ;  Fish  v.  Dodge,  4  Denio,  311,  47  Am.  Dec.  254.) 


NUISANCE!.  449 


5.  Keeping  dangerous  substances. 

(80  N.  Y.  579,  36  Am.  Rep.  654.) 

HEEG  v.  LIGHT. 
(Court  of  Appeals  of  New  York.     April  6,  1880.) 

NUISANCE— KEEPING  GUNPOWDER. 

The  mere  keeping  of  gunpowder  In  dangerous  proximity  to  the  prem- 
ises of  another  is  a  nuisance,  rendering  the  person  keeping  it  liable  for 
injuries  caused  by  its  explosion,  irrespective  of  the  question  of  his  negli- 
gence. 

Appeal  from  Supreme  Court,  General  Term,  Second  Department. 

Action  by  prank  Heeg  against  Philip  Licht  to  recover  damages  for 
injuries  to  plaintiff's  buildings  alleged  to  have  been  caused  by  the  ex- 
plosion of  a  powder  magazine  on  defendant's  premises,  and  for  an  in- 
junction to  restrain  defendant  from  manufacturing  and  storing  upon  his 
premises  fire-works  and  other  explosive  substances.  A  verdict  was 
rendered  for  defendant,  and  the  judgment  entered  thereon  was  affirmed 
on  appeal  to  the  general  term.  From  the  judgment  of  the  general  term 
plaintiff  appealed. 

MILLER,  J.  This  action  is  sought  to  be  maintained  upon  the 
ground  that  the  manufacturing  and  storing  of  fire-works,  and  the  use 
and  keeping  of  materials  of  a  dangerous  and  explosive  character  for- 
that  purpose,  constituted  a  private  nuisance,  for  which  the  defendant 
was  !iabie  to  respond  in  damages,  without  regard  to  the  question  wheth- 
er he  was  chargeable  with  carelessness  or  negligence.  The  defendant 
had  constructed  a  powder  magazine  upon  his  premises,  with  the  usual 
safeguards,  in  which  he  kept  stored  a  quantity  of  powder,  which,  with- 
out any  apparent  cause,  exploded,  and  caused  the  injury  complained  of. 
The  judge  upon  the  trial  charged  the  jury  that  they  must  find  for  the 
defendant,  unless  they  found  that  the  defendant  carelessly  and  negli- 
gently kept  the  gunpowder  upon  his  premises.  The  judge  refused  to 
charge  that  the  powder  magazine  was  dangerous  in  itself  to  plaintiff 
and  his  property,  and  was  a  private  nuisance,  and  the  defendant  was  lia- 
ble to  the  plaintiff,  whether  it  was  carelessly  kept  or  not ;  and  the  plain- 
tiff duly  excepted  to  the  charge  and  the  refusal  to  charge. 

We  think  that  the  charge  made  was  erroneous,  and  not  warranted  by 
the  facts  presented  upon  the  trial.  The  defendant  had  erected  a  build- 
ing, and  stored  materials  therein,  which  from  their  character  were  liable 
to  and  actually  did  explode,  causing  injury  to  the  plaintiff.  The 
fact  that  the  explosion  took  place  tends  to  establish  that  the  magazine 
was  dangerous,  and  liable  to  cause  damage  to  the  property  of  persons 
residing  in  the  vicinity.  The  locality  of  works  of  this  description  must 
depend  upon  the  neighborhood  in  which  they  are  situated.  In  a  city, 
with  buildings  immediately  contiguous,  and  persons  constantly  passing, 
CHASE  (2o  ED.) — 29 


450  LAW  OF  TORTS. 

there  could  be  no  question  that  such  an  erection  would  be  unlawful  and 
unauthorized.  An  explosion,  under  such  circumstances,  independent 
of  any  municipal  regulations,  would  render  the  owner  amenable  for  all 
damages  arising  therefrom.  That  the  defendant's  establishment  was 
outside  of  the  territorial  limits  of  a  city  does  not  relieve  the  owner  from 
responsibility  or  alter  the  case,  if  the  dangerous  erection  was  in  close 
contiguity  with  dwelling-houses  or  buildings  which  might  be  injured 
or  destroyed  in  case  of  an  explosion.  The  fact  that  the  magazine  was 
liable  to  such  contingency,  which  could  not  be  guarded  against  or  avert- 
ed by  the  greatest  degree  of  care  and  vigilance,  evinces  its  dangerous 
character,  and  might  in  some  localities  render  it  a  private  nuisance.  In 
such  a  case  the  rule  which  exonerates  a  party  engaged  in  a  lawful  busi- 
ness, when  free  from  negligence,  has  no  application.  The  keeping  or 
manufacturing  of  gunpowder  or  fire-works  does  not  necessarily  consti- 
tute a  nuisance  per  se.  That  depends  upon  the  locality,  the  quantity, 
and  the  surrounding  circumstances,  and  not  entirely  upon  the  degree 
of  care  used.  In  the  case  at  bar  it  should  have  been  left  for  the  jury  to 
determine  whether,  from  the  dangerous  character  of  the  defendant's 
business,  the  proximity  to  other  buildings,  and  all  the  facts  proved 
upon  the  trial,  the  defendant  was  chargeable  with  maintaining  a  private 
nuisance  and  answerable  for  the  damages  arising  from  the  explosion. 

A  private  nuisance  is  defined  to  be  anything  done  to  the  hurt  or  an- 
noyance of  the  lands,  tenements,  or  hereditaments  of  another.  3  Bl. 
Comm.  216.  Any  unwarrantable,  unreasonable,  or  unlawful  use  by  a 
person  of  his  own  property,  real  or  personal,  to  the  injury  of  another, 
comes  within  the  definition  stated,  and  renders  the  owner  or  possessor 
liable  for  damages  arising  from  such  use.  Wood,  Nuis.  §  i,  and  au- 
thorities cited.  The  cases  which  are  regarded  as  private  nuisances  are 
numerous,  and  the  books  are  full  of  decisions  holding  the  parties  an- 
swerable for  the  injuries  which  result  from  their  being  maintained. 
The  rule  is  of  universal  application  that,  while  a  man  may  prosecute 
such  business  as  he  chooses  on  his  own  premises,  he  has  no  right  to 
erect  and  maintain  a  nuisance  to  the  injury  of  an  adjoining  proprietor, 
or  of  his  neighbors,  even  in  the  pursuit  of  a  lawful  trade.  Aldred's 
Case,  9  Coke,  58 ;  Brady  v.  Weeks,  3  Barb.  157 ;  Dubois  v.  Budlong, 
15  Abb.  Prac.  445;  Wier's  Appeal,  74  Pa.  230. 

While  a  class  of  the  reported  cases  relates  to  the  prosecution  of  a 
legitimate  business,  which  of  itself  produces  inconvenience  and  injury 
to  others,  another  class  refers  to  acts  done  on  the  premises  of  the  owner, 
which  are  of  themselves  dangerous  to  the  property  and  the  persons  of 
others  who  may  reside  in  the  vicinity,  or  who  may  by  chance  be  pass- 
ing along  or  in  the  neighborhood  of  the  same.  Of  the  former  class 
are  cases  of  slaughter-houses,  fat  and  offal  boiling  establishments,  hog- 
styes,  or  tallow  manufactories,  in  or  near  a  city,  which  are  offensive 
to  the  senses,  and  render  the  enjoyment  of  life  and  property  uncom- 
fortable. Catlin  v.  Valentine,  9  Paige,  575,  38  Am.  Dec.  567;  Brady 


NUISANCE.  451 

v.  Weeks,  3  Barb.  157;  Dubois  v.  Budlong,  15  Abb.  Prac.  445;  Rex 
v.  White,  i  Burrows,  337;  2  Bl.  Comm.  215;  Farrand  v.  Marshall,  21 
Barb.  421.  It  is  not  necessary  in  these  cases  that  the  noxious  trade  or 
business  should  endanger  the  health  of  the  neighborhood.  So,  also, 
the  use  of  premises  in  a  manner  which  causes  a  noise  so  continuous  and 
excessive  as  to  produce  serious  annoyance,  or  vapors  or  noxious  smells, 
(Tipping  v.  Smelting  Co.,  4  Best  &  S.  608;  Brill  v.  Flagler,  23  Wend. 
354 ;  Pickard  v.  Collins,  23  Barb.  444 ;  Wood,  Nuis.  §  5) ;  or  the  burn- 
ing of  a  brick-kiln  from  which  gases  escape  which  injure  the  trees  of 
persons  in  the  neighborhood,  (Campbell  v.  Seaman,  63  N.  Y.  568,  20 
Am.  Rep.  567).  Of  the  latter  class,  also,  are  those  where  the  owner 
blasts  rocks  with  gunpowder,  and  the  fragments  are  liable  to  be  thrown 
on  the  premises,  and  injure  the  adjoining  dwelling-houses,  or  the  owner 
or  persons  there  being,  or  where  persons  traveling  may  be  injured  by 
such  use.  Hay  v.  Cohoes  Co.,  3  Barb.  42;  Id.,  2  N.  Y.  159,  51  Am. 
Dec.  279;  Tremain  v.  Cohoes  Co.,  2  N.  Y.  163,  51  Am.  Dec.  284; 
Pixley  v.  Clark,  35  N.  Y.  523,  91  Am.  Dec.  72.  Most  of  the  cases  cited 
rest  upon  the  maxim,  sic  utere  tuo,  etc. ;  and,  where  the  right  to  the  un- 
disturbed possession  and  enjoyment  of  property  conies  in  conflict  with 
the  rights  of  others,  that  it  is  better,  as  a  matter  of  public  policy,  that 
a  single  individual  should  surrender  the  use  of  his  land  for  especial 
purposes  injurious  to  his  neighbor  or  to  others,  than  that  the  latter 
should  be  deprived  of  the  use  of  their  property  altogether,  or  be  sub- 
jected to  great  danger,  loss,  and  injury,  which  might  result  if  the  rights 
of  the  former  were  without  any  restriction  or  restraint. 

The  keeping  of  gunpowder  or  other  materials  in  a  place,  or  under  cir- 
cumstances, where  it  would  be  liable,  in  case  of  explosion,  to  injure 
the  dwelling-houses  or  the  persons  of  those  residing  in  close  proximity, 
we  think  rests  upon  the  same  principle,  and  is  governed  by  the  same 
general  rules.  An  individual  has  no  more  right  to  keep  a  magazine 
of  powder  upon  his  premises,  which  is  dangerous,  to  the  detriment  of 
his  neighbor,  than  he  is  authorized  to  engage  in  any  other  business 
which  may  occasion  serious  consequences. 

The  counsel  for  the  defendant  relies  upon  the  case  of  People  v. 
Sands,  i  Johns.  78,  3  Am.  Dec.  296,  to  sustain  the  position  that  the 
defendant's  business  was  neither  a  public  nor  a  private  nuisance. 
That  was  an  indictment  for  keeping  a  quantity  of  gunpowder  near 
dwelling-houses,  and  near  a  public  street ;  and  it  was  held  (Spencer, 
J.,  dissenting)  that  the  fact  as  charged  did  not  amount  to  a  nuisance, 
and  that  it  should  have  been  alleged  to  have  been  negligently  and 
improvidently  kept.  It  will  be  seen  that  the  case  was  disposed  of 
upon  the  form  of  the  indictment,  and,  while  it  may  well  be  that  an 
allegation  of  negligence  is  necessary  where  an  indictment  is  for  a 
public  nuisance,  it  by  no  means  follows  that  negligence  is  essential 
in  a  private  action  to  recover  damages  for  an  alleged  nuisance.  In 
Myers  v.  Malcolm,  6  Hill,  292,  41  Am.  Dec.  744,  it  was  held  that  the 


452  LAW  OF  TORTS. 

act  of  keeping  a  large  quantity  of  gunpowder,  insufficiently  secured, 
near  other  buildings,  thereby  endangering  the  lives  of  persons  resid- 
ing in  the  vicinity,  amounted  to  a  public  nuisance,  and  an  action 
would  lie  for  damages  where  an  explosion  occurred  causing  injury. 
Nelson,  C.  J.,  citing  People  v.  Sands,  supra,  says :  "Upon  the  princi- 
ple that  nothing  will  be  intended  or  inferred  to  support  an  indictment, 
the  court  said,  for  aught  they  could  see,  the  house  may  have  been 
one  built  and  secured  for  the  purpose  of  keeping  powder  in  such  a 
way  as  not  to  expose  the  neighborhood;"  and  he  cites  several  au- 
thorities which  uphold  the  doctrine  that,  where  gunpowder  is  kept 
in  such  a  place  as  is  dangerous  to  the  inhabitants  or  passengers,  it 
will  be  regarded  as  a  nuisance.  The  case  of  People  v.  Sands  is  not, 
therefore,  controlling  upon  the  question  of  negligence.  Fillo  v. 
Jones,  2.  Abb.  Dec.  121,  is  also  relied  upon,  but  does  not  sustain  the 
doctrine  contended  for;  and  it  is  there  held  that  an  action  for  dam- 
ages caused  by  the  explosion  of  fire-works  may  be  maintained  upon 
the  theory  that  the  defendant  was  guilty  of  a  wrongful  and  unlawful 
act,  or  of  default,  in  keeping  them  at  the  place  they  were  kept,  be- 
cause they  were  liable  to  spontaneous  combustion  and  explosion, 
and  thus  endangered  the  lives  of  persons  in  their  vicinity,  and  that  the 
injury  was  occasioned  by  such  spontaneous  combustion  and  explo- 
sion. 

It  is  apparent  that  negligence  alone  in  the  keeping  of  gunpowder 
is  not  controlling,  and  that  the  danger  arising  from  the  locality  where 
the  fire-works  or  gunpowder  are  kept  is  to  be  taken  into  considera- 
tion in  maintaining  an  action  of  this  character.  We  think  that  the 
request  to  charge  was  too  broad,  and  properly  refused.  The  charge, 
however,  should  have  been  in  conformity  with  the  rule  herein  laid 
down,  and,  for  the  error  of  the  judge  in  the  charge,  the  judgment 
should  be  reversed,  and  a  new  trial  granted,  with  costs  to  abide  the 
event.  All  concur. 

Judgment  reversed. 

(See,  to  the  same  effect  Kleebauer  v.  Western  Fuse  &  Explosives  Co.  [Cal.] 
69  Pac.  246,  60  L.  R.  A.  377  [powder  magazine] ;  Hazard  Powder  Co.  v.  Vol- 
ger,  58  Fed.  153,  7  C.  C.  A.  136  [Id.] ;  Bradford  Glycerine  Co.  v.  St  Mary's 
Mfg.  Co.,  60  Ohio  St  560,  54  N.  B.  528,  45  L.  R.  A.  658,  71  Am.  St  Rep.  740 
[nitroglycerine];  Wier's  Appeal,  74  Pa.  230;  McAndrews  v.  Collerd,  42  N. 
J.  Law,  189,  36  Ain.  Rep.  508 ;  Laflin  Powder  Co.  v.  Tearney,  131  111.  325,  23 
N.  E.  389,  7  L.  R.  A.  262,  19  Am.  St.  Rep.  34;  Prussak  v.  Button,  30  App. 
Oiv.  66,  51  N.  Y.  Supp.  761 ;  Comm.  v.  Kidder,  107  Mass.  188.) 


NUISANCE.  453 


6.  Obstruction  of  highway. 

(18  N.  T.  79.) 

COXGREVE  v.  SMITH  et  al. 
(Court  of  Appeals  of  New  York.    September,  1858.) 

1.  HIGHWAYS— EXCAVATION  UNDER  SIDEWALK. 

Persons  who,  without  authority,  make  or  continue  a  covered  excavation 
in  a  public  street  or  highway  for  a  private  purpose  are  liable  for  all  in- 
juries to  individuals  resulting  from  the  street  or  highway  being  thereby 
less  safe  for  its  appropriate  use  (there  being  no  negligence  by  the  parties 
injured),  without  regard  to  the  question  of  negligence  in  those  who  make 
the  excavation. 

2.  SAME— INDEPENDENT  CONTRACTORS— CONTINUING  NUISANCE. 

That  the  injuries  were  caused  by  the  negligence,  in  covering  the  exca- 
vation, of  servants  of  contractors  for  that  work,  who  had  contracted  to 
do  it  properly,  does  not  relieve  from  liability  the  persons  who  procured  it 
to  be  done,  and  did  not  object  to  it,  and  continued  the  excavation  in  its 
unsafe  condition,  they  being  bound,  at  their  peril,  to  make  and  at  all 
times  keep  the  street  as  safe  as  it  would  have  been  if  the  excavation  had 
not  been  made. 

Appeal  from  Superior  Court  of  New  York  City,  General  Term, 
Action  by  Congreve  against  Smith  and  another  for  personal  in- 
juries caused  by  the  breaking  of  a  flag-stone,  over  an  area  in  the 
street  in  front  of  defendants'  premises,  while  plaintiff  was  traveling 
thereon.  The  area  was  built  under  the  sidewalk  outside  the  lot-line 
in  the  street  proper,  and  the  flag-walk  was  laid  over  the  same  by 
persons  who  erected  the  adjoining  building  and  the  area  under  con- 
tract with  defendant  owners.  Defendants  sought  to  escape  liability 
on  the  ground  that  the  persons  who  built  the  area  and  walk  were 
independent  contractors,  skillful  mechanics,  and  were  required  by 
their  contract  to  build  the  same  in  a  skillful  manner,  using  the  best 
of  materials;  but  the  court  charged  that  defendants  were  liable  in 
the  same  manner  as  their  contractors  would  have  been,  and  the  ques- 
tion was  whether  the  stone  was  such  as  a  prudent  and  skillful  me- 
chanic would  have  used,  to  which  defendants  excepted.  The  jurj 
rendered  a  verdict  for  plaintiff  for  $650.  The  judgment  entered  there- 
on was  affirmed  by  the  general  term.  From  the  judgment  of  the 
general  term  defendants  appealed. 

STRONG,  J.  The  verdict  of  the  jury,  under  the  instructions  given 
them  by  the  court,  involves  the  finding  that  the  stone  covering  the 
area  was  unsuitable  and  unsafe  for  that  purpose,  wherefore  it  broke, 
and  the  plaintiff  received  the  injury  in  question.  The  area  was  under 
the  surface  of  the  public  street,  and  was  maintained  for  the  benefit 
of  the  property  of  the  defendants,  and  the  stone  was  placed  over  it 


454  LAW   OF   TORTS. 

under  contractors  with  the  defendants  for  the  completion  of  the  de- 
fendants' building,  in  pursuance  of  the  contract.  No  license  from  the 
city  for  the  area  was  proved. 

It  certainly  is  just  that  persons  who,  without  special  authority, 
make  or  continue  a  covered  excavation  in  a  public  street  or  highway, 
for  a  private  purpose,  should  be  responsible  for  all  injuries  to  indi- 
viduals resulting  from  the  street  or  highway  being  thereby  less  safe 
for  its  appropriate  use,  there  being  no  negligence  by  the  parties  in- 
jured; and  I  entertain  no  doubt  that  a  liability  to  that  extent  is  im- 
posed on  them  by  law.  Such  is  clearly  the  legal  responsibility  for 
placing  objects  upon  the  surface  of  the  ground,  obstructing  the  full 
and  free  enjoyment  of  the  easement ;  and  there  does  not  appear  to  be 
any  distinction  in  principle  as  to  the  liability  of  a  party  for  an  act 
making  the  use  of  the  easement  dangerous,  arising  from  the  mode  in 
which  it  is  done,  whether  by  objects  upon  or  over  the  surface,  which 
may  be  run  upon  or  against,  or  by  holes  in  the  earth  into  which  per- 
sons may  fall.  The  general  doctrine  is  that  the  public  are  entitled 
to  the  street  or  highway  in  the  condition  in  which  they  placed  it ; 
and  whoever,  without  special  authority,  materially  obstructs  it,  or 
renders  its  use  hazardous,  by  doing  anything  upon,  above,  or  below 
the  surface,  is  guilty  of  a  nuisance ;  and,  as  in  all  other  cases  of 
public  nuisance,  individuals  sustaining  special  damage  from  it,  with- 
out any  want  of  due  care  to  avoid  injury,  have  a  remedy  by  action 
against  the  author  or  person  continuing  the  nuisance.  No  question 
of  negligence  can  arise,  the  act  being  wrongful.  It  is  as  much  a 
wrong  to  impair  the  safety  of  a  street  by  undermining  it  as  by  placing 
objects  upon  it.  There  can  be  no  difference  in  regard  to  the  nature 
of  the  act  or  the  rule  of  liability,  whether  the  fee  of  the  land  within 
the  limits  of  the  easement  is  in  a  municipal  corporation  or  in  him 
by  whom  the  act  complained  of  was  done ;  in  either  case,  the  act  of 
injuring  the  easement  is  illegal. 

The  case  of  Dygert  v.  Schenck,  23  Wend.  446,  35  Am.  Dec.  575, 
appears  to  be  directly  in  point.  In  that  case  it  was  held  that  the  de- 
fendant, who  had  dug  a  race-way  across  a  public  road,  over  his  own 
land,  to  conduct  water  to  his  mill,  and  built  a  bridge  across  it,  was 
liable  for  an  injury  sustained  in  consequence  of  the  bridge  being  out 
of  repair.  The  court,  by  Cowen,  J.,  said  that,  in  suffering  the  bridge 
to  become  unsafe,  "the  defendant  came  short  of  his  obligation  to  the 
public.  Any  act  of  an  individual  done  to  the  highway,  if  it  detract 
from  the  safety  of  travelers,  is  a  nuisance."  And  again :  "Special 
damage  arising  from  it,  therefore,  furnishes  ground  for  private  ac- 
tion, without  regard  to  the  question  of  negligence  in  him  who  digs 
it.  The  utmost  care  to  prevent  mischief  will  not  protect  him,  if  the 
injury  happen  without  gross  carelessness  on  the  part  of  the  sufferer." 

It  is  no  answer  to  the  present  action  that  the  covering  of  the  area 
was  done  under  the  contractors,  who  had  contracted  to  do  the  work 


NUISANCE.  455 

properly,  and  that  the  defendants  are  not  responsible  for  the  negli- 
gence of  the  contractors'  servants.  The  act  was  that  of  the  defend- 
ants. They  procured  it  to  be  done,  and  do  not  appear  to  have  ob- 
jected to  it.  Besides,  the  action  may  well  stand  on  the  basis  of  con- 
tinuing the  area  and  the  stone  covering  it,  they  making  the  easement 
unsafe,  compared  with  what  it  otherwise  would  have  been.  That  is 
a  sufficient  ground  of  liability.  The  defendants  were  bound,  at  their 
peril,  to  make,  and  at  all  times  keep,  the  street  as  safe  as  it  would 
have  been  if  the  area  had  not  been  constructed.  The  defendants, 
therefore,  have  no  ground  for  complaint  with  any  of  the  rulings  at 
the  trial,  or  of  the  charge  to  the  jury,  and  the  judgment  should  be 
affirmed. 

SELDEN,  J.,  was  absent.    All  the  other  judges  concurred. 

Judgment  affirmed. 

(See  also  Callanan  v.  Oilman,  107  N.  Y.  360,  14  N.  E.  264,  1  Am.  St.  Rep. 
831 ;  Cohen  v.  Mayor,  etc.,  113  N.  Y.  532,  21  N.  E.  700,  4  L.  R.  A.  406,  10  Am. 
St.  Rep.  506;  Marine  Ins.  Co.  v.  St.  Louis,  I.  M.  &  S.  R.  Co.  [C.  C.]  41  Fed. 
643;  Calder  v.  Smalley,  66  Iowa,  219,  23  N.  W.  638,  55  Am.  Rep.  270.  A 
coal  hole  constructed  in  a  sidewalk  without  lawful  permit  has  been  held  a 
nuisance,  and  if  a  passer-by  is  injured  without  fault  on  his  own  part,  by 
falling  into  it,  the  owner  of  the  premises  [or  his  tenant  in  proper  cases]  has 
been  held  liable,  though  not  chargeable  with  negligence.  But  if  lawful  au- 
thority be  obtained  to  make  the  coal  hole,  it  is  not  a  nuisance,  and  the 
owner  is  not  liable  unless  proved  guilty  of  negligence.  Clifford  v.  Dam,  81 
N.  Y.  52 ;  Wolf  v.  Kilpatrick,  101  N.  Y.  146,  4  N.  E.  188,  54  Am.  Rep.  672 ;  2 
Dillon,  Mun.  Corp.  [4th  Ed.]  §§  1032-1035.) 


III.  WHO  RESPONSIBLE. 

(108  Pa.  489.) 

FOW  v.  ROBERTS. 

(Supreme  Court  of  Pennsylvania.    March  9,  1885.) 

NUISANCE— WHO  LIABLE— LANDLOBD  AND  TENANT. 

Where  a  cess-pool  is  so  constructed  by  the  owner  of  the  premises  that 
the  offensive  matter  deposited  therein  by  his  tenants  necessarily  perco- 
lates through  to  the  adjoining  premises,  the  owner  is  equally  liable  with 
the  tenants  for  the  Injury  to  the  adjoining  occupant. 

Error  to  the  court  of  common  pleas  No.  2  of  Philadelphia  county, 
of  July  term,  1884,  No.  17. 

Action  on  the  case  by  George  Fow  against  Elizabeth  Roberts.  On 
the  trial  it  appeared  that  a  cess-pool  on  defendant's  premises  was 
constructed  within  a  foot  of  the  cellar  wall  on  the  adjoining  premises 


456  LAW  OF  TORTS. 

owned  and  occupied  by  plaintiff;  that  defendant's  premises  were 
three  houses,  rented  to  tenants,  all  of  whom  had  the  use  of  such 
cess-pool ;  that  when  the  offensive  matter  deposited  therein  by  the 
tenants  rose  to  the  height  of  the  plaintiff's  cellar  floor  it  percolated 
chrough,  and  rendered  his  premises  uninhabitable.  The  trial  court 
held  that  the  tenants  alone  were  liable,  and  nonsuited  plaintiff; 
whereupon  plaintiff  sued  out  this  writ  of  error,  assigning  as  error  the 
entry  of  the  nonsuit,  and  a  subsequent  refusal  to  take  it  off. 

Argued  before  MERCUR,  C.  J.,  PAXSON,  TRUNKEY,  STER- 
RETT,  GREEN,  and  CLARK,  JJ. ;  GORDON,  J.,  absent. 

PAXSON,  J.  It  needs  but  a  cursory  examination  of  the  evidence 
in  this  case  to  see  that  the  privy-well  complained  of  was  a  nuisance 
of  the  most  offensive  character.  It  was  situated  but  one  foot  from  the 
line  which  divided  the  property  of  the  plaintiff  from  that  of  the  de- 
fendant, and  when  filled  to  a  certain  point  the  filthy  matter  per- 
colated through  the  wall  into  the  plaintiff's  cellar.  Indeed,  there  ap- 
pears to  have  been  little  dispute  at  the  trial  below  either  as  to  the 
existence  of  the  nuisance  or  its  character.  The  main  question  was, 
who  was  liable  therefor,  the  tenant  in  possession,  or  the  landlord 
who  had  demised  the  premises  with  the  privy  located  as  above  de- 
scribed? The  suit  was  against  the  landlord  for  maintaining  the  nui- 
sance. The  court  below  nonsuited  the  plaintiff,  upon  the  ground  that 
the  tenant  was  alone  liable. 

The  defendant  contended  that  the  well  was  not  per  se  a  nuisance ; 
that  when  she  leased  the  property  to  the  present  tenant,  in  1879, 
no  complaint  had  been  made  of  the  well,  and  that  it  had  become  a 
nuisance  by  the  manner  of  its  use  by  the  tenants ;  that  they  had  al- 
lowed it  to  be  used  by  two  or  three  families,  and  had  neglected  to 
have  it  cleaned  at  the  proper  time. 

The  law  upon  this  subject  was  correctly  stated  in  the  recent  case 
of  Knauss  v.  Brua,  decided  at  the  last  term  in  the  middle  district,  (107 
Pa.  85,)  where  it  was  said  by  our  Brother  Gordon :  "We  do  not  doubt 
but  that,  in  the  absence  of  an  agreement  to  repair,  the  landlord  is 
not  liable  to  a  third  party  for  a  nuisance  resulting  from  dilapidation 
in  the  leasehold  premises  while  in  the  possession  of  a  tenant.  To 
make  the  lessor  so  liable,  the  effect  must  be  one  that  arises  neces- 
sarily from  a  continuance  of  the  use  of  the  property  as  it  was  when 
the  tenant  took  possession  of  it.  But  the  converse  of  this  proposi- 
tion is  also  true;  if  the  premises  are  so  constructed,  or  in  such  a 
condition,  that  the  continuance  of  their  use  by  the  tenant  must  result 
in  a  nuisance  to  a  third  person,  and  a  nuisance  does  so  result,  the 
landlord  is  liable." 

Applying  this  principle  to  the  case  in  hand,  it  is  too  clear  for  argu- 
ment that  the  tenant  would  be  responsible  to  the  plaintiff  for  the  flow 
of  the  offensive  matter  upon  the  premises  of  the  latter.  He  is  re- 


NUISANCB.  457 

sponsible  for  the  reason  that  the  act  complained  of  is  his.  The  filth 
was  deposited  there  by  himself,  his  family,  or  by  others  whom  he 
permitted  to  use  the  privy. 

Is  the  landlord  also  liable?  We  are  not  considering  any  question 
for  liability  of  repairs,  as  between  landlord  and  tenant.  It  does  not 
arise  necessarily  in  the  case.  But  if  the  landlord  constructed  or  main- 
tained his  privy  in  such  position,  as  regards  his  neighbor's  property, 
that  its  use  would  result  in  a  nuisance  to  the  latter,  and  demised  it 
to  a  tenant,  we  are  of  opinion  that  he  is  responsible  for  the  conse- 
quences of  its  use.  The  privy,  as  before  stated,  was  within  one  foot 
of  the  plaintiff's  cellar  wall.  A  property  owner  who  so  locates  a  privy 
on  his  premises  ought  to  know  that  it  may,  and  probably  will,  become 
a  nuisance.  To  build  a  cess-pool  now  within  two  feet  of  the  line  of 
any  adjoining  lot  would  be  a  violation  of  a  city  ordinance,  and  it  is  a 
violation  of  said  ordinance  to  maintain  a  cess-pool  within  said  limits. 
The  reason  for  this  wise  municipal  regulation  undoubtedly  is  that 
cessrpools  so  constructed  are  nuisances,  and  endanger,  not  only  the 
comfort,  but  the  health,  of  citizens. 

The  defendant  having  demised  the  premises  in  question  to  a  ten- 
ant with  a  cess-pool  so  situated  thereon  that  its  use  must  necessarily 
result  in  a  nuisance  to  the  plaintiff,  we  are  of  opinion  that  she  is  liable 
to  the  plaintiff.  It  was  urged,  however,  that  it  was  only  for  the  man- 
ner of  its  use  that  the  well  became  a  nuisance.  We  fail  to  see  the 
force  of  this  reasoning.  The  cess-pool  was  used  for  the  very  purpose 
for  which  it  was  constructed,  and  the  tenant  had  the  right  to  use  it. 
We  cannot  measure  the  extent  to  which  a  cess-pool  may  be  lawfully 
used.  Its  lawful  use  in  this  case  resulted  in  a  nuisance  to  the  plain- 
tiff. The  defendant  demised  the  premises,  with  the  cess-pool  so  lo- 
cated that  it  would  naturally  produce  such  a  result,  and  for  the  result 
we  must  hold  her  to  be  liable. 

The  judgment  is  reversed,  and  a  procedendo  is  awarded. 

("It  ts  not  the  general  rule  that  an  owner  of  land  is,  as  such,  responsible 
for  any  nuisance  thereon.  It  is  the  occupier,  and  he  alone,  to  whom  such 
responsibility  generally  and  prima  facie  attaches.  The  owner  is  responsible 
if  he  creates  a  nuisance  and  maintains  it;  if  he  creates  a  nuisance  and  then 
demises  the  land  with  the  nuisance  thereon,  although  he  is  out  of  occupation ; 
if  the  nuisance  was  erected  on  the  land  by  a  prior  owner,  or  by  a  stranger, 
and  he  knowingly  maintains  it ;  if  he  has  demised  premises  and  covenanted 
to  keep  them  in  repair,  and  omits  to  repair,  and  thus  they  become  a  nuisance ; 
if  he  demises  premises  to  be  used  as  a  nuisance,  or  for  a  business,  or  in  a  way 
so  that  they  will  necessarily  become  a  nuisance.  But  an  owner  who  has  de- 
mised premises  for  a  term  during  which  they  become  ruinous,  and  thus  a 
nuisance,  is  not  responsible  for  the  nuisance,  unless  he  has  covenanted  to  re- 
pair." Ahern  v.  Steele,  115  N.  Y.,  at  page  209,  22  N.  E.  194,  5  L.  R.  A.  449,  12 
Am.  St  Rep.  77&) 


458  LAW  OF  TORTS. 

(19  N.  H.  471.) 

CURTICE  v.  THOMPSON  et  al. 
(Superior  Court  of  Judicature  of  New  Hampshire.    July  Term,  1849.) 

1.  NUISANCE— ALTERATION  or  DAM— FLOW  AGE. 

Evidence  that  a  party,  by  making  a  dam  higher  or  tighter  than  It 
had  been,  caused  the  water  to  flow  the  plaintiff's  land  to  a  greater  height 
than  before,  is  admissible  in  an  action  on  the  case,  for  maintaining  and 
keeping  up  a  dam. 

2.  SAME— CONVEYANCE  OF  LAND. 

The  party  erecting  or  otherwise  causing  such  a  nuisance  is  not  exon* 
erated,  by  conveying  the  land  to  another,  from  damages  arising  there- 
from after  the  conveyance. 

3.  SAME— NOTICE  TO  ABATE — ACTION. 

The  party  who,  by  means  of  such  alterations  in  the  dam,  causes  the 
wrongful  flowing,  is  not  entitled  to  notice  to  abate,  before  action  brought. 

Defendants  purchased  a  mill  dam  which  had  been  acquired  by  long 
use  and  acquiescence,  and  thereafter  raised  the  same  and  made  it 
tighter  than  before,  thereby  causing  plaintiff's  land  to  be  flowed  be- 
yond the  right  of  defendants.  After  the  alteration  in  the  dam  de- 
fendants conveyed  the  same  to  another.  The  injuries  from  the  over- 
flowage  occurred  after  such  conveyance.  Judgment  on  verdict  for 
plaintiff. 

WOODS,  J.  A  question  is  made  in  this  case  whether  the  facts 
proved  sustain  the  plaintiff's  allegation  that  the  defendants  main- 
tained, kept  up,  and  continued  the  dam,  and  thereby  caused  the  plain- 
tiff's land  to  be  overflowed.  The  defendants  purchased  the  mill  and 
the  dam  in  1842,  and  had  the  right  to  maintain  and  keep  it  as  they 
then  found  it.  But  in  1843  tne7  repaired  the  dam,  and  so  changed 
its  character  and  construction  as  to  cause  the  damage  of  which  the 
plaintiff  complains.  His  land  was  flowed  beyond  the  point  to  which 
the  defendants  had  any  right  to  flow  it  by  means  of  their  dam.  This 
is  the  substance  of  what  is  charged  in  the  declaration,  and  fully  sus- 
tains it.  To  this  point  was  the  case  of  Bunker  v.  Bunker,  decided  in 
Belknap,  July  term,  1847. 

The  defendants,  however,  say  that  having,  as  early  as  1844,  parted 
with  their  possession  of  the  dam,  and  with  all  control  of  its  waters, 
and  conveyed,  with  certain  reservations,  their  whole  interest  therein 
to  other  parties,  who,  from  a  day  somewhat  anterior  to  the  convey- 
ance, and  until  the  commencement  of  the  suit,  exercised  an  undivided 
management  and  use  of  the  premises,  they  are  not  responsible  for 
the  damage  that  ensued  during  the  period  named  in  the  writ.  But 
this  question  was  examined  in  Plumer  v.  Harper,  3  N.  H.  92,  14  Am. 
.  333>  where  it  was  held  that  the  party  who  erects  the  nuisance 


NUISANCE. 

continues  liable  so  long  as  it  exists,  although  a  like  liability  may 
have  attached  to  other  parties  by  becoming  purchasers. 

Without,  therefore,  laying  any  stress  upon  the  reservations  in  the 
conveyances  of  these  defendants  to  Leeds,  as  having  the  effect  of 
making  them  partakers  with  him  in  the  benefits  of  the  nuisance,  and 
partial  procurers  of  the  maintenance  of  it,  we  are  bound,  by  the  very 
reasonable  and  well-established  doctrine  of  that  case,  to  adjudge  them 
liable  in  this  action,  as  the  original  authors  of  the  wrong. 

The  defendants  further  insist  that,  having  purchased  the  land  with 
the  dam  upon  it,  they  are  entitled  to  notice  from  the  plaintiff  of  the 
injurious  nature  of  the  structure,  and  to  a  request  from  the  com- 
plaining party  for  its  removal,  before  they  can  be  charged  in  an 
action  for  maintaining  it.  In  this  they  would  be  deemed  to  be  per- 
fectly correct,  if  the  thing  complained  of  were  the  same  which  they 
found  upon  the  land  at  the  time  of  their  purchase.  But  such  is  not 
the  fact.  The  gravamen  is  that  they  maintained  a  dam  whereby  the 
plaintiff's  land  was  flooded.  Such  was  not  the  dam  which  their 
grantors  erected  or  maintained,  but  the  dam  in  its  altered  character, 
whether  higher  or  tighter  than  the  rightful  structure  which  they 
purchased.  As  the  authors  of  the  nuisance,  then,  they  have  no  right 
to  any  notice.  They  are  liable  upon  the  evidence,  which  charges  them 
with  having  caused  the  nuisance,  notice  being  required  only  to  charge 
a  purchaser  by  reason  of  having  adopted  it. 

Judgment  on  the  verdict. 

("The  doctrine  of  the  cases  in  this  state  and  elsewhere  Is  that  he  who 
erects  a  nuisance  does  not,  by  conveying  the  land  to  another,  transfer  the 
liability  for  the  erection  to  the  grantee ;  and  the  grantee  is  not  liable  until, 
upon  request,  he  refuses  to  remove  the  nuisance,  for  the  reason  that  he 
cannot  know  until  such  request  but  that  the  dam"  [this  was  the  nuisanco 
in  this  easel  "was  rightfully  erected ;  and  there  can  be  no  Injury  ia  holding 
to  this  doctrine,  as  the  original  wrong-doer  continues  liable,  notwithstanding 
his  alienation."  Eastman  v.  Amoskeag  Mfg.  Co.,  44  N.  H.,  at  page  156,  82 
Am.  Dec.  201;  Sloggy  v.  Dilworth,  38  Minn.  179,  36  N.  W.  451,  8  Am.  St. 
Rep.  656;  Hyde  Park  Light  Co.  v.  Porter,  167  111.  276,  47  N.  E.  206.  "The 
ground  upon  which  the  alienor  is  held  liable  for  a  nuisance  created  by 
him  is  that  he  is  the  author  of  the  original  wrong,  and  transferring  the 
premises  with  the  original  wrong  still  existing  is  treated  as  affirming  the 
continuance  of  it."  East  Jersey  Water  Co.  v.  Bigelow,  60  N.  J.  Law,  at  page 
204,  38  Atl.  632.  See  also  Johnson  v.  Lewis,  13  Conn.  303,  33  Am.  Dec.  405 ; 
21  Am.  and  Eng.  Encyc.  of  Law  (2d  Ed.)  719,  720. 

In  New  York  the  rule  as  to  the  liability  of  the  grantor  is  more  qualified: 
"A  party  who  has  erected  a  nuisance  will  sometimes  be  answerable  for  its 
continuance  after  he  has  parted  with  the  possession  of  the  land ;  but  it  is 
only  when  he  continues  to  derive  a  benefit  from  the  nuisance,  as  by  demising 
the  premises  and  receiving  rent,  or  where  he  conveys  the  property  with  cov- 
enants for  the  continuance  of  the  nuisance."  Mayor  of  Albany  v.  Cunliff, 
2  N.  Y.,  at  page  174 ;  Covert  v.  Cranford,  141  N.  Y.  521,  527,  36  N.  E.  297,  38 
Am.  St  Rep.  826;  Hanse  v.  Cowing,  1  Lans.  288.) 


460  LAW  OF  TORTS. 

(3  Allen,  264,  80  Am.  Dec.  72.) 

McDONOUGH  v.  OILMAN. 
(Supreme  Judicial  Court  of  Massachusetts.    Nov.  Term,  1861.) 

1.  NUISANCE— Wno  LIABLE— LANDLORD  AND  TENANT. 

A  tenant  for  years,  who  restores  a  nuisance  to  a  right  of  way  after 
the  same  has  been  abated,  is  liable  therefor,  although  the  same  existed 
before  his  tenancy ;  but  merely  repairing  it  after  it  was  injured,  but  not 
abated,  will  not  make  him  liable,  if  it  does  not  become  more  of  a  nuisance 
thereby. 

2.  SAME— CONTINUING  NUISANCE— NOTICE  TO  REMOVE. 

A  tenant  for  years  is  not  liable  for  keeping  a  nuisance  as  It  was  used 
before  his  tenancy  commenced,  in  the  absence  of  a  request  to  remove  it, 
if  he  does  no  new  act  of  itself  amounting  to  a  nuisance. 

3.  SAME. 

The  notice  to  a  tenant  to  remove  a  nuisance  which  is  kept  by  him  in 
the  manner  in  which  it  existed  when  his  tenancy  commenced,  without 
any  act  on  his  part  amounting  in  itself  to  a  nuisance,  must  be  clear  and 
unequivocal,  to  make  him  liable  for  the  continuance. 

Exceptions  from  Superior  Court,  Suffolk  County. 

Action  of  tort  by  Patrick  McDonough  against  George  W.  Gilman 
for  erecting  and  maintaining  a  nuisance  on  plaintiff's  right  of  way. 
Verdict  was  rendered  for  plaintiff.  Defendant  alleged  exceptions. 

CHAPMAN,  J.  The  plaintiff's  declaration  in  this  case  is  very 
loose  and  inartificial ;  but  the  amended  count  on  which  he  relies 
states,  in  substance,  that  he  has  a  right  of  way,  as  therein  described, 
and  that  the  defendant  has  obstructed  it  by  erecting  and  maintaining 
on  a  part  of  it  a  staircase,  privy,  and  vault.  On  the  trial  it  appeared 
that  these  structures  were  placed  there,  not  by  the  tenant,  who  is  a 
lessee  for  years,  but  by  his  lessors ;  and  that  his  lease  contains  the 
following  clause :  "The  passage-ways  around  the  said  buildings  [the 
leased  premises]  are  reserved  by  the  lessors,  who  hereby  lease  only 
the  right  of  such  use  thereof  as  may  be  necessary  for  the  enjoyment 
of  the  building  aforesaid."  One  of  these  passage-ways  is  the  way 
in  question;  and  the  fee  of  the  land  is  in  the  lessors,  subject  to  the 
plaintiff's  right  of  way.  The  privy  and  vault  existed  before  the  de- 
fendant became  tenant,  about  18  years  ago.  It  does  not  appear  when 
the  staircase  was  built. 

The  instruction  to  the  jury  that,  if  they  found  the  privy  was  a  nui- 
sance, and  the  plaintiff  abated  it,  and  the  defendant  restored  it,  he  is 
liable,  was  correct;  for  in  such  case  the  existing  nuisance  would 
have  been  erected  by  him,  and  not  by  his  lessor.  But  the  instruction 
does  not  appear  to  be  applicable  to  the  facts  as  reported.  It  is  stated 
that  "on  one  occasion  the  plaintiff  commenced  beating  down  said 
staircase  with  his  axe,  when  the  defendant  restrained  him  therefrom; 


NUISANCE.  461 

and  on  one  occasion  the  plaintiff  beat  off  the  boards  from  said  privy, 
and  the  defendant  refitted  it."  It  is  not  stated  that  the  plaintiff  re- 
moved the  frame  of  the  privy.  He  merely  knocked  off  the  boards, 
which  would  make  it  none  the  less  a  nuisance,  and  the  defendant 
merely  refitted  it,  which  did  not  make  it  any  more  a  nuisance  than 
before.  The  act  would  be  merely  keeping  and  maintaining  it,  not 
erecting  it.  It  would  be  like  the  case  of  Beswick  v.  Cunden,  Cro. 
Eliz.  520.  In  that  case'  the  declaration  alleged  that  the  defendant 
kept  and  maintained  a  bank  by  which  a  brook  was  caused  to  flow 
around  the  plaintiff's  land.  The  court  said :  "There  is  not  here  any 
offense  committed  by  the  defendant ;  for  he  allegeth  that  he  kept 
and  maintained  a  bank,  which  is  that  he  kept  it  as  he  found  it ;  and 
it  is  not  any  offense  done  by  him,  for  he  did  not  do  anything;  and, 
if  it  were  a  nuisance  before  his  time,  it  is  not  any  offense  in  him  to 
keep  it."  And  the  case  is  distinguished  from  other  cases  where  every 
using  is  a  new  nuisance,  as  the  using  of  an  aqueduct  which  takes 
water  wrongfully  from  another.  There  every  turning  of  the  cock 
to  let  the  water  flow  is  a  new  nuisance.  The  act  of  refitting  the  privy 
must  have  been  an  act  which  rendered  it  more  a  nuisance  to  the  pass- 
age-way than  it  would  otherwise  have  been,  to  make  the  defendant 
liable  as  an  erector  of  the  nuisance.  The  act  of  the  defendant  in  re- 
straining the  plaintiff  from  beating  down  the  staircase  with  an  axe  is 
not  embraced  in  this  ruling,  and  the  character  and  circumstances  of 
the  act  do  not  fully  appear. 

The  other  instructions  excepted  to  were  as  follows :  "That,  if  the 
privy  and  staircase  were  an  obstruction  of  the  plaintiff's  right  of  way, 
then  the  tenant  is  liable  to  an  action,  if  the  obstruction  continued,  and 
if  he  occupied  the  premises  after  notice  was  given  to  him  by  the 
plaintiff  to  remove  the  obstructions,  although  they  were  erected  by 
his  landlord ;  and  that  the  law  does  not  prescribe  the  kind  of  notice 
which  should  thus  be  given  by  the  plaintiff  to  the  defendant  to  re- 
move said  obstructions ;"  and  he  submitted  the  question  to  the  jury 
whether  such  notice  had  or  had  not  been  given.  The  report  states 
all  the  evidence  of  notice  that  was  offered,  and  it  is  as  follows :  "The 
plaintiff  complained  to  the  defendant  of  the  erection  of  the  staircase 
at  the  time  when  it  was  erected ;  and  on  another  occasion  the  plain- 
tiff asked  the  defendant  how  he  thought  he  could  drive  a  team  with 
two  tons  of  coal  by  said  stairway  to  his  house."  His  attempting  to 
beat  down  the  staircase  with  an  axe,  and  knocking  the  boards  off 
from  the  privy,  are  not  a  notice.  The  court  are  of  opinion  that  this 
instruction  was  not  quite  correct. 

In  Penruddock's  Case,  5  Coke,  loob,  it  was  resolved  that  an  action 
lies  against  one  who  erects  a  nuisance,  without  any  request  made 
to  abate  it,  but  not  against  the  feoffee,  unless  he  does  not  reform  the 
nuisance  after  request  made.  In  Winsmore  v.  Greenbank,  Willes, 
583,  Penruddock's  Case  is  referred  to,  with  the  remark  that  the  law 


462          .  LAW  OF  TORTS. 

is  certainly  so.  In  2  Chit.  PI.  (6th  Amer.  Ed.)  770,  note,  pleaders  are 
advised  to  allege  in  the  declaration  a  special  request  to  remove  the 
nuisance  in  actions  against  the  grantee  of  the  premises.  In  Pierson 
v.  Glean,  14  N.  J.  Law,  37,  25'  Am.  Dec.  497,  Hornblower,  C.  J.,  says : 
"The  law,  as  settled  in  Penruddock's  Case,  has  never,  I  believe,  been 
seriously  questioned  since."  This  action  was  for  maintaining  a  dam 
erected  by  a  former  owner,  and  it  was  held  that  it  could  not  be  main- 
tained without  a  request  to  reform  the  nuisance.  In  Woodman  v. 
Tufts,  9  N.  H.  92,  the  same  doctrine  is  held,  and  the  court  proceed 
to  say :  "And  the  question  arises,  what  that  request  must  be.  It  un- 
doubtedly must  be  so  distinctly  and  definitely  stated  as  to  convey 
clearly  the  ground  of  the  complaint,  with  a  notice  that  the  plaintiff 
will  not  longer  submit  to  the  continuance  of  the  cause  of  the  injury." 
"No  particular  form  of  words  is  required."  This  does  not  quite  come 
up  to  the  law  of  Penruddock's  Case.  We  think  that  there  should  be, 
in  some  unequivocal  language,  a  request  to  the  tenant  to  reform  or 
remove  a  nuisance,  before  he  can  be  held  liable  for  its  continuance. 
It  is  not  unreasonable  to  hold  the  plaintiff  who  proceeds  against  the 
lessee  to  this  strictness.  The  landlord  or  grantor  himself  is  liable, 
notwithstanding  his  lease  or  grant,  for  the  continuance  of  the  nui- 
sance. This  was  settled  in  Roswell  v.  Prior,  12  Mod.  635.  In  that 
case  the  plaintiff  had  recovered  against  the  defendant  for  erecting  a 
building  which  stopped  the  plaintiff's  ancient  lights.  The  defendant 
had  granted  over  the  ground  with  the  nuisance  to  another,  and 
contended  that  he  was  no  longer  liable,  but  that  the  action  should 
be  against  the  lessee.  But  the  court  said :  "Surely  this  action  is  well 
brought  against  the  erector,  for  before  his  assignment  over  he  was 
liable  for  all  consequential  damages,  and  it  shall  not  be  in  his  power 
to  discharge  himself  by  granting  it  over,  and  more  especially  here, 
where  he  grants  over,  reserving  rent,  whereby  he  agrees  with  the 
grantee  that  the  nuisance  should  continue,  and  has  a  recompense, 
viz.,  the  rent  for  the  same;  for  surely  when  one  erects  a  nuisance, 
and  grants  it  over  in  that  manner,  he  is  a  continuer  with  a  witness." 
But  the  tenant,  who  merely  enters  upon  the  premises  and  occupies 
them  under  an  obligation  to  pay  rent  for  the  whole  and  to  commit 
no  waste,  cannot  reasonably  be  regarded  as  a  wrong-doer  till  the 
party  injured  distinctly  and  unequivocally  complains  to  him  of  the 
injury,  and  informs  him  that  he  is  expected  to  act  in  the  matter,  and 
remove  it.  In  Ryppon  v.  Bowles,  Cro.  Jac.  373,  it  is  said  that  Coke, 
C.  J.,  inclined  to  the  opinion  that  a  tenant  for  years  is  not  liable  for 
the  mere  occupation  of  a  building  erected  by  his  lessor,  and  which 
obstructs  the  plaintiff's  lights,  because  his  tearing  down  the  building 
would  be  waste  as  to  his  landlord. 

In  the  present  case  the  language  proved  does  not  amount  to  a 
request,  and  the  jury  should  have  been  so  instructed;  for,  though 
verbal  communications  are  to  be  construed  by  the  jury  under  instruc- 


NUISANCE.  403 

tions  from  the  court,  yet  when  a  communication  cannot,  by  any  fair 
interpretation,  be  regarded  as  a  sufficient  notice  or  request,  the  jury 
should  be  so  instructed  as  to  its  meaning. 
Exceptions  sustained. 

(This  same  rule  as  to  the  need  of  a  request  to  abate  applies  to  grantees  or 
devisees  as  well  as  to  lessees.  Ahern  v.  Steele,  115  N.  Y.,  at  page  210,  22  N. 
B.  194,  5  L.  R.  A.  449,  12  Am.  St  Rep.  778;  Nichols  v.  City  of  Boston,  98 
Mass.  39,  93  Am.  Dec.  132.  See  also  Sandford  v.  Clarke,  21  Q.  B.  Div.  398; 
Dalay  v.  Savage,  145  Mass.  38,  12  N.  E.  841,  1  Am.  St.  Rep.  429;  Lufkin  v. 
Zane,  157  Mass.  117,  31  N.  E.  757,  77  L.  R.  A.  251,  34  Am.  St.  Rep.  262 ;  Joyce 
v.  Martin,  15  R.  I.  558,  10  Atl.  620 ;  Pope  v.  Boyle,  98  Mo.  527,  11  S.  W.  1010 ; 
Clifford  v.  Cotton  Mills,  146  Mass.  47,  15  N.  E.  84,  4  Am.  St.  Rep.  279;  Lee 
v.  McLaughlin,  86  Me.  410,  30  Atl.  65,  26  L.  R.  A.  197 ;  Nugent  v.  Boston,  C 
&  M.  R.  Co.,  80  Me.  62,  12  Atl.  797,  6  Am.  St.  Rep.  151;  Ingwersen  v.  Ran- 
kin,  47  N.  J.  Law,  18,  54  Am.  Rep.  109 ;  Lane  v.  Cox  [1897]  1  Q.  B.  415.  The 
law  of  New  York  differs  somewhat  from  that  of  the  principal  case.  Thus 
it  is  held  that  where  a  person  acquires  title  to  land  upon  which  there  is  a 
nuisance,  the  mere  omission  to  abate  or  remove  it  does  not  render  him  liable; 
it  is  necessary  to  prove  either  a  request  to  him  to  abate  it,  or  that  he  had 
notice  or  knowledge  of  its  existence.  Conhocton  Stone  Road  v.  Buffalo,  N. 
Y.  &  E.  R.  Co.,  51  N.  Y.  573,  10  Am.  Rep.  646;  Wenzlick  v.  McCotter,  87  N. 
Y.  122,  41  Am.  Rep.  358;  Timlin  T.  Standard  Oil  Co.,  126  N.  Y.  514,  27  N. 
E.  786,  22  Am.  St  Rep.  845.) 


IV.  PRIVATE  INJURY  FROM  PUBLIC  NUISANCE. 

(13  Allen,  95,  90  Am.  Dec.  181.) 

WESSON  v.  WASHBURN  IRON  CO. 

(Supreme  Judicial  Court  of  Massachusetts.     Oct.  Term,  1866.) 

L  PUBLIC  NUISANCE— SPECIAL,  DAMAGE  TO  INDIVIDUALS. 

Where  the  right  invaded  or  impaired  is  a  common  and  public  one, 
which  every  subject  of  the  state  may  exercise  and  enjoy,  a  mere  depri- 
vation or  obstruction  of  the  use  which  hinders  all  persons  alike,  and 
does  not  cause  any  special  or  peculiar  damage  to  any  one,  furnishes  no 
yalid  cause  of  action  to  an  individual,  although  he  may  suffer  incon- 
venience greater  in  degree  than  others  from  the  alleged  obstruction  or 
hindrance.  But  when  the  alleged  nuisance  injures  private  property,  or 
the  health  or  comfort  of  an  individual,  it  is  in  its  nature  special  and 
peculiar,  and  cannot  be  said  to  cause  a  common  or  public  damage;  and 
it  is  actionable,  though  it  is  committed  in  a  manner  and  under  circum- 
stances which  would  render  the  guilty  party  liable  to  an  indictment  for 
a  common  nuisance. 

2.  SAME— NOISE,  SMOKE,  AND  Noxious  VAPOBS. 

A  person  may  recover  for  injuries  to  his  premises  caused  by  noise, 
smoke,  and  noxious  vapors  in  the  operation  of  another's  rolling-mills, 
though  many  other  persons  in  the  same  neighborhood  are  injured  in  the 
same  way. 


404  LAW  OF  TORTS. 

Exceptions  from  Superior  Court,  Worcester  County. 

Action  by  Betsey  Wesson  against  the  Washburn  Iron  Company 
for  injuries  to  plaintiff's  premises  caused  by  the  operation  of  defend- 
ant's rolling-mill  and  foundry.  It  appeared  at  the  trial  that  defend- 
ant's works  were  erected  in  a  proper  locality,  and  were  properly 
constructed  and  managed,  but  that  the  jarring  and  noise  from  the 
machinery,  and  the  smoke,  cirders,  dust,  and  gas  from  its  operation, 
were  so  great  as  materially  to  injure  plaintiff's  premises.  Plaintiff 
requested  the  court  to  instruct  the  jury  that  if  her  dwelling-house  was 
injured  by  jarring  and  shaking,  and  rendered  unfit  for  habitation  by 
smoke,  cinders,  dust,  and  gas  from  defendant's  works,  it  was  no  de- 
fense to  the  action  that  many  other  houses  in  the  neighborhood  were 
affected  in  a  similar  manner.  But  the  judge  declined  so  to  rule,  and 
instructed  the  jury,  in  accordance  with  defendant's  request,  that 
plaintiff  could  not  maintain  the  action  if  it  appeared  that  the  damage 
which  plaintiff  had  sustained  in  her  estate  was  common  to  all  others 
in  the  vicinity ;  but  it  must  appear  that  she  had  sustained  some  spe- 
cial damage,  differing  in  kind  and  degree  from  that  common  to  all 
others  in  the  neighborhood.  The  jury  found  a  verdict  for  defendant. 
Plaintiff  alleged  exceptions. 

BIGELOW,  C.  J.  The  interesting  question  is  to  be  considered 
whether  the  instructions  under  which  the  case  was  submitted  to  the 
jury  were  correct,  and  appropriate  to  the  facts  in  proof.  There  can 
be  no  doubt  of  the  truth  of  the  general  principle  stated  by  the  court, 
that  a  nuisance  may  exist  which  occasions  an  injury  to  an  individual, 
for  which  an  action  cannot  be  maintained  in  his  favor,  unless  he  can 
show  some  special  damage  in  his  person  or  property,  differing  in 
kind  and  degree  from  that  which  is  sustained  by  other  persons  who 
are  subjected  to  inconvenience  and  injury  from  the  same  cause.  The 
difficulty  lies  in  the  application  of  this  principle.  The  true  limit, 
as  we  understand  it,  within  which  its  operation  is  allowed,  is  to  be 
found  in  the  nature  of  the  nuisance  which  is  the  subject  of  complaint. 
If  the  right  invaded  or  impaired  is  a  common  and  public  one,  which 
every  subject  of  the  state  may  exercise  and  enjoy,  such  as  the  use 
of  a  highway,  or  canal,  or  public  landing  place,  or  a  common  watering 
place  on  a  stream  or  pond  of  water,  in  all  such  cases  a  mere  depriva- 
tion or  obstruction  of  the  use  which  excludes  or  hinders  all  persons 
alike  from  the  enjoyment  of  the  common  right,  and  which  does  not 
cause  any  special  or  peculiar  damage  to  any  one,  furnishes  no  valid 
cause  of  action  in  favor  of  an  individual,  although  he  may  suffer 
inconvenience  or  delay  greater  in  degree  than  others  from  the  al- 
leged obstruction  or  hindrance.  The  private  injury,  in  this  class  of 
cases,  is  said  to  be  merged  in  the  common  nuisance  and  injury  to 
all  citizens,  and  the  right  is  to  be  vindicated  and  the  wrong  punished 
by  a  public  prosecution,  and  not  bv  a  multiplicity  of  separate  actions 


NUISANCE.  465 

in  favor  of  private  individuals.  Several  instances  of  the  application 
of  this  rule  are  to  be  found  in  our  own  Reports.  Stetson  v.  Faxon, 
19  Pick.  147,  31  Am.  Dec.  123;  Thayer  v.  Boston,  19  Pick.  511,  514, 
31  Am.  Dec.  157;  Quincy  Canal  v.  Newcomb,  7  Mete.  (Mass.)  276, 
283,  39  Am.  Dec.  778;  Holman  v.  Townsend,  13  Mete.  (Mass.)  297, 
299;  Smith  v.  Boston,  7  Cush.  254;  Brainard  v.  Railroad  Co.,  Id. 
506,  511;  Blood  v.  Railroad  Corp.,  2  Gray,  140,  61  Am.  Dec.  444; 
Brightman  v.  Fairhaven,  7  Gray,  271 ;  Harvard  College  v.  Stearns, 
15  Gray,  I ;  Willard  v.  Cambridge,  3  Allen,  574;  Hartshorn  v.  South 
Reading,  Id.  501 ;  Fall  River  Iron-Works  Co.  v.  Old  Colony  &  F. 
R.  R.  Co.,  5  Allen,  224. 

But  it  will  be  found  that  in  all  these  cases,  and  in  others  in  which 
the  same  principle  has  been  laid  down,  it  has  been  applied  to  that 
class  of  nuisances  which  have  caused  a  hindrance  or  obstruction  in 
the  exercise  of  a  right  which  is  common  to  every  person  in  the  com- 
munity, and  that  it  has  never  been  extended  to  cases  where  the  al- 
leged wrong  is  done  to  private  property,  or  the  health  of  individuals 
is  injured,  or  their  peace  and  comfort  in  their  dwellings  is  impaired 
by  the  carrying  on  of  offensive  trades  and  occupations  which  create 
noisome  smells  or  disturbing  noises,  or  cause  other  annoyances  and 
injuries  to  persons  and  property  in  the  vicinity,  however  numerous 
or  extensive  may  be  the  instances  of  discomfort,  inconvenience,  and 
injury  to  persons  and  property  thereby  occasioned.  Where  a  public 
right  or  privilege,  common  to  every  person  in  the  community,  is 
interrupted  or  interfered  with,  a  nuisance  is  created  by  the  very  act 
of  interruption  or  interference,  which  subjects  the  party  through 
whose  agency  it  is  done  to  a  public  prosecution,  although  no  actual 
injury  or  damage  may  be  thereby  caused  to  any  one.  If,  for  ex- 
ample, a  public  way  is  obstructed,  the  existence  of  the  obstruction 
is  a  nuisance,  and  punishable  as  such,  even  if  no  inconvenience  or 
delay  to  public  travel  actually  takes  place.  It  would  not  be  necessary, 
in  a  prosecution  for  such  a  nuisance,  to  show  that  any  one  had  been 
delayed  or  turned  aside.  The  offense  would  be  complete,  although 
during  the  continuance  of  the  obstruction  no  one  had  had  occasion 
to  pass  over  the  way.  The  wrong  consists  in  doing  an  act  inconsist- 
ent with  and  in  derogation  of  the  public  or  common  right.  It  is  in 
cases  of  this  character  that  the  law  does  not  permit  private  actions 
to  be  maintained  on  proof  merely  of  a  disturbance  in  the  enjoyment 
of  the  common  right,  unless  special  damage  is  also  shown,  distinct 
not  only  in  degree,  but  in  kind,  from  that  which  is  done  to  the  whole 
public  by  the  nuisance. 

But  there  is  another  class  of  cases  in  which  the  essence  of  the 
wrong  consists  in  an  invasion  of  private  right,  and  in  which  the  public 
offense  is  committed,  not  merely  by  doing  an  act  which  causes  in- 
jury, annoyance,  and  discomfort  to  one  or  several  persons  who  may 
come  within  the  sphere  of  its  operation  or  influence,  but  by  doing  it 
CHASE  (2o  ED.) — 30 


466  LAW  OF  TORTS. 

m  such  place  and  in  such  manner  that  the  aggregation  of  private 
injuries  becomes  so  great  and  extensive  as  to  constitute  a  public  an- 
noyance and  inconvenience,  and  a  wrong  against  the  community, 
which  may  be  properly  the  subject  of  a  public  prosecution.  But  it 
has  never  been  held,  so  far  as  we  know,  that  in  cases  of  this  charac- 
ter the  injury  to  private  property,  or  to  the  health  and  comfort  of 
individuals,  becomes  merged  in  the  public  wrong,  so  as  to  take  away 
from  the  persons  injured  the  right  which  they  would  otherwise  have 
to  maintain  actions  to  recover  damages  which  each  may  have  sus- 
tained in  his  person  or  estate  from  the  wrongful  act. 

Nor  would  such  a  doctrine  be  consistent  with  sound  principle. 
Carried  out  practically,  it  would  deprive  persons  of  all  redress  for 
injury  to  property  or  health,  or  for  personal  annoyance 'and  discom- 
fort, in  all  cases  where  the  nuisance  was  so  general  and  extensive 
as  to  be  a  legitimate  subject  of  a  public  prosecution ;  so  that,  in  ef- 
fect, a  wrong-doer  would  escape  all  liability  to  make  indemnity  for 
private  injuries  by  carrying  on  an  offensive  trade  or  occupation  in 
such  place  and  manner  as  to  cause  injury  and  annoyance  to  a  suffi- 
cient number  of  persons  to  create  a  common  nuisance. 

The  real  distinction  would  seem  to  be  this :  That,  when  the  wrong- 
ful act  is  of  itself  a  disturbance  or  obstruction  only  to  the  exercise 
of  a  common  and  public  right,  the  sole  remedy  is  by  public  prosecu- 
tion, unless  special  damage  is  caused  to  individuals.  In  such  case, 
the  act,  of  itself,  does  no  wrong  to  individuals  distinct  from  that  done 
to  the  whole  community.  But  when  the  alleged  nuisance  would 
constitute  a  private  wrong,  by  injuring  property  or  health,  or  creat- 
ing personal  inconvenience  and  annoyance,  for  which  an  action, 
might  be  maintained  in  favor  of  a  person  injured,  it  is  none  the  less 
actionable  because  the  wrong  is  committed  in  a  manner  and  under 
circumstances  which  would  render  the  guilty  party  liable  to  indict- 
ment for  a  common  nuisance.  This,  we  think,  is  substantially  the 
conclusion  to  be  derived  from  a  careful  examination  of  the  adjudged 
cases.  The  apparent  conflict  between  them  can  be  reconciled  on  the 
ground  that  an  injury  to  private  property,  or  to  the  health  and  com- 
fort of  an  individual,  is  in  its  nature  special  and  peculiar,  and  does 
not  cause  a  damage  which  can  properly  be  said  to  be  common  or 
public,  however  numerous  may  be  the  cases  of  similar  damage  aris- 
ing from  the  same  cause.  Certainly,  multiplicity  of  actions  affords 
no  good  reason  for  denying  a  person  all  remedy  for  actual  loss  and 
injury  which  he  may  sustain  in  his  person  or  property  by  the  unlaw- 
ful acts  of  another,  although  it  may  be  a  valid  ground  for  refusing 
redress  to  individuals  for  a  mere  invasion  of  a  common  and  public 
right. 

The  rule  of  law  is  well  settled  and  familiar,  that  every  man  is 
bound  to  use  his  own  property  in  such  manner  as  not  to  injure  the 
property  of  another,  or  the  reasonable  and  proper  enjoyment  of  it, 


NUISANCE.  467 

and  that  the  carrying  on  of  an  offensive  trade  or  business,  which 
creates  noisome  smells  and  noxious  vapors,  or  causes  great  and 
disturbing  noises,  or  which  otherwise  renders  the  occupation  of 
property  in  the  vicinity  inconvenient  and  uncomfortable,  is  a  nuisance 
for  which  any  person  whose  property  is  damaged  or  whose  health 
is  injured,  or  whose  reasonable  enjoyment  of  his  estate  as  a  place  of 
residence  is  impaired  or  destroyed,  thereby  may  well  maintain  an 
action  to  recover  compensation  for  the  injury.  The  limitations  prop- 
er to  be  made  in  the  application  of  this  rule  are  accurately  stated  in 
Bamford  v.  Turnley,  3  Best  &  S.  66,  and  in  Tipping  v.  Smelting  Co., 
4  Best  &  S.  608-615,  ii  H.  L,.  Cas.  642,  and  cases  there  cited.  See, 
also,  in  addition  to  cases  cited  by  the  counsel  for  the  plaintiff,  Spen- 
cer v.  Railway  Co.,  8  Sim.  193 ;  Soltau  v.  De  Held,  2  Sim.  (N.  S.)  133. 

The  instructions  given  to  the  jury  were  stated  in  such  form  as  to 
lead  them  to  infer  that  this  action  could  not  be  maintained  if  it  ap- 
peared that  other  owners  of  property  in  that  neighborhood  suffered 
injury  and  damage  similar  to  that  which  was  sustained  by  the  plain- 
tiff in  her  estate  by  the  acts  of  the  defendants.  This,  as  applied  to 
the  facts  in  proof,  was  an  error,  and  renders  it  necessary  that  the 
case  should  be  tried  anew. 

Exceptions  sustained. 

(See  also  Buchholz  v.  New  York,  L.  E.  &  W.  R.  Co.,  148  N.  Y.  640,  43  N. 
E.  76,  reported  ante,  on  page  67.  Additional  cases  of  value  are  Francis  v. 
Schoellkopf,  53  N.  Y.  152;  Kavanagh  v.  Barber,  131  N.  Y.  211,  30  N.  E.  235, 
15  L.  R.  A.  689;  Cranford  v.  Tyrrell,  128  N.  Y.  341,  28  N.  E.  514;  Brayton  v. 
Fall  River,  113  Mass.  218,  18  Am.  Rep.  470;  Railroad  Co.  v.  Jones,  111  Pa. 
204,  2  Atl.  410,  56  Am.  Rep.  200;  Crook  v.  Pitcher,  61  Md.  510;  Sohn  v. 
Camberu,  106  Ind.  302,  6  N.  E.  813;  Clark  v.  Peckbam,  10  R.  I.  35,  14  Am. 
Rep.  654;  City  of  Chicago  v.  Building  Ass'n,  102  111.  379,  40  Am.  Rep.  598; 
Brown  v.  Watson,  47  Me.  161,  74  Am.  Dec.  482;  Holmes  v.  Corthell,  80  Me. 
31,  12  Atl.  730 ;  Mehrhof  Bros.  Brick  Mfg.  Co.  v.  Delaware,  L.  &  W.  R.  Co., 
51  N.  J.  Law,  56,  16  Atl.  12.  As  to  what  will  be  deemed  sufficient  special 
damage,  resulting  from  the  obstruction  of  a  highway,  to  support  a  cause 
of  action  in  tort,  see  Wakeman  v.  Wilbur,  147  N.  Y.  657,  42  N.  E.  341; 
Knowles  v.  Pennsylvania  R.  Co.,  175  Pa.  623,  34  Atl.  974,  52  Am.  St.  Rep. 
860:  O'Brien  v.  Central  Iron  &  Steel  Co.,  158  Ind.  218,  63  N.  E.  302,  57  L.  R. 
A.  508,  92  Am.  St.  Rep.  305;  Flynn  v.  Taylor,  127  N.  Y.  596,  28  N.  E.  418, 
14  L.  R.  A.  556.) 


408  LAW  OF  TOBTS. 


V.  LEGALIZED  NUISANCE. 

(136  Mass.  239,  49  Am.  Rep.  27.) 

SAWYER  et  al.  v.  DAVIS  et  al. 

(Supreme  Judicial  Court  of  Massachusetts.     Jan.  9,  1884.) 

L  NUISANCE— LEGALIZED  BY  STATUTE. 

The  legislature  may,  by  virtue  of  its  police  power,  pass  an  act  providing 
that  manufacturers  and  others  employing  workmen  may,  for  the  pur- 
pose of  giving  notice  to  such  employees,  ring  bells  and  use  whistles  and 
gongs  of  such  size  and  weight,  in  such  manner,  and  at  such  hours,  as  the 
municipal  authorities  may  designate,  though  their  use  of  such  beils, 
whistles,  and  gougs  operates  to  the  injury  of  individuals,  which  other- 
wise a  court  of  equity  would  restrain. 

2.  SAME— EFFECT  OF  PRIOR  INJUNCTION. 

An  injunction  restraining  the  ringing  of  a  factory  bell,  used  to  notify 
employees,  before  a  certain  hour  in  the  morning,  does  not  give  a  vested 
right  which  the  legislature  is  powerless  to  take  away  by  a  statute  legal- 
izing the  ringing  of  such  bell  before  that  hour,  and  on  a  bill  of  review 
in  such  case  the  injunction  will  be  dissolved. 

Case  reserved. 

Bill  of  review.  Plaintiffs,  manufacturers  of  Plymouth,  were,  on 
October  I,  1881,  restrained  by  a  decree  of  this  court,  on  a  bill  in  eq- 
uity by  defendants,  from  ringing  the  bell  on  their  mill  before  the 
hour  of  6:30  a.  m.  Davis  v.  Sawyer,  133  Mass.  289,  43  Am.  Rep. 
519.  March  28,  1883,  the  legislature  passed  an  act  providing  that 
"manufacturers  and  others  employing  workmen  are  authorized,  for 
the  purpose  of  giving  notice  to  such  employees,  to  ring  bells  and 
use  whistles  and  gongs  of  such  size  and  weight,  in  such  manner,  and 
at  such  hours,  as  the  board  of  aldermen  of  cities  and  the  selectmen 
of  towns  may  in  writing  designate."  St.  Mass.  1883,  c.  84.  Under 
such  statute  the  selectmen  of  the  town  licensed  plaintiffs  to  ring  their 
bell  at  5  a.  m.  The  bill  prayed  a  dissolution  or  modification  of  the 
injunction  to  enable  plaintiffs  to  act  under  their  license.  Defend- 
ants demurred  to  the  bill,  claiming  that  the  statute  was  unconstitu- 
tional so  far  as  applicable  to  defendants.  At  the  hearing  before  Col- 
burn,  J.,  he  reserved  the  case  for  the  consideration  of  the  full  court. 

C.  ALLEN,  J.  Nothing  is  better  established  than  the  power  of 
the  legislature  to  make  what  are  called  "police  regulations,"  declar- 
ing in  what  manner  property  shall  be  used  and  enjoyed,  and  busi- 
ness carried  on,  with  a  view  to  the  good  order  and  benefit  of  the 
community,  even  although  they  may  to  some  extent  interfere  with 
the  full  enjoyment  of  private  property,  and  although  no  compensation 
is  given  to  a  person  so  inconvenienced.  Bancroft  v.  Cambridge,  126 
Mass.  438-441.  In  most  instances,  the  illustrations  of  the  proper 


NUISANCE.  469 

exercise  of  this  power  are  found  in  rules  and  regulations  restraining 
the  use  of  property  by  the  owner  in  such  manner  as  would  cause  dis- 
turbance and  injury  to  others.  But  the  privilege  of  continuing  in 
the  passive  enjoyment  of  one's  own  property,  in  the  same  manner  as 
formerly,  is  subject  to  a  like  limitation ;  and  with  the  increase  of 
population  in  a  neighborhood,  and  the  advance  and  development 
of  business,  the  quiet  and  seclusion  and  customary  enjoyment  of 
homes  are  necessarily  interfered  with,  until  it  becomes  a  question 
how  the  right  which  each  person  has  of  prosecuting  his  lawful  busi- 
ness, in  a  reasonable  and  proper  manner,  shall  be  made  consistent 
with  the  other  right  which  each  person  has  to  be  free  from  unreason- 
able disturbance  in  the  enjoyment  of  his  property.  Merrifield  v, 
Worcester,  no  Mass.  216,  219,  14  Am.  Rep.  592.  In  this  conflict 
of  rights,  police  regulations  by  the  legislature  find  a  proper  office 
in 'determining  how  far,  and  under  what  circumstances,  the  individual 
must  yield,  with  a  view  to  general  good.  For  example,  if,  in  a  neigh- 
borhood thickly  occupied  by  dwelling-houses,  any  one,  for  his  own 
entertainment  or  the  gratification  of  a  whim,  were  to  cause  bells  to 
be  rung  and  steam-whistles  to  be  blown  to  the  extent  that  is  usual 
with  the  bells  and  steam-whistles  of  locomotive  engines  near  rail- 
road stations  in  large  cities,  there  can  be  no  doubt  that  it  would  be 
an  infringement  of  the  rights  of  the  residents,  for  which  they  would 
find  ample  remedy  and  vindication  in  the  courts.  But  if  the  legis- 
lature, with  a  view  to  the  safety  of  life,  provides  that  bells  shall  be 
rung  and  whistles  sounded,  under  those  circumstances,  persons  liv- 
ing near  by  must  necessarily  submit  to  some  annoyance  from  this 
source,  which  otherwise  they  would  have  a  right  to  be  relieved  from. 
It  is  ordinarily  a  proper  subject  for  legislative  discretion  to  deter- 
mine by  general  rules  the  extent  to  which  those  who  are  engaged 
in  customary  and  lawful  necessary  occupations  shall  be  required  or 
allowed  to  give  signals  or  warnings  by  bells  or  whistles,  or  other- 
wise, with  a  view  either  to  the  public  safety,  as  in  the  case  of  rail- 
roads, or  to  the  necessary  or  convenient  operation  and  management 
of  their  own  works ;  and  ordinarily  such  determination  is  binding 
upon  the  courts,  as  well  as  upon  citizens  generally.  And  when  the 
legislature  directs  or  allows  that  to  TDC  done  which  would  other- 
wise be  a  nuisance,  it  will  be  valid,  upon  the  ground  that  the  legis- 
lature is  ordinarily  the  proper  judge  of  what  the  public  good  requires, 
unless  carried  to  such  an  extent  that  it  can  fairly  be  said  to  be  an 
unwholesome  and  unreasonable  law.  Bancroft  v.  Cambridge,  126 
Mass.  441.  It  is  accordingly  held  in  many  cases,  and  is  now  a  well- 
established  rule  of  law,  at  least  in  this  commonwealth,  that  the  in- 
cidental injury  which  results  to  the  owner  of  property  situated  near 
a  railroad,  caused  by  the  necessary  noise,  vibration,  dust,  and  smoke 
from  the  passing  trains,  which  would  clearly  amount  to  an  actionable 
nuisance  if  the  operation  of  the  railroad  were  not  authorized  by  the 


470  LAW  OP  TORTS. 

legislature,  must,  if  the  running  of  the  trains  is  so  authorized,  be 
borne  by  the  individual,  without  compensation  or  remedy  in  any 
form.  The  legislative  sanction  makes  the  business  lawful,  and  defines 
what  must  be  accepted  as  a  reasonable  use  of  property  and  exercise 
of  rights  on  the  part  of  the  railroad  company,  subject  always  to  the 
qualification  that  the  business  must  be  carried  on  without  negligence 
or  unnecessary  disturbance  of  the  rights  of  others.  And  the  same 
rule  extends  to  other  causes  of  annoyance  which  are  regulated  and 
sanctioned  by  law.  Presbrey  v.  Railway,  103  Mass,  i,  6,  7;  Walker 
v.  Railway,  Id.  10-14,  4  Am.  Rep.  509;  Bancroft  v.  Cambridge,  126 
Mass.  441;  Call  v.  Allen,  I  Allen,  137;  Com.  v.  Chemical  Works, 
1 6  Gray,  231-233;  Struthers  v.  Railway,  87  Pa.  282;  Hatch  v.  Rail- 
road, 28  Vt.  142,  147;  Brand  v.  Railway,  L.  R.  i  Q.  B.  130,  L.  R. 
2  Q.  B.  223,  L.  R.  4  H.  L.  171  ;  Vaughan  v.  Railway,  5  Hurl.  &  N. 
679,  685,  687 ;  Rex  v.  Pease,  4  Barn.  &  Adol.  30 ;  Sedg.  St.  &  Const. 
Law,  435,  436. 

The  recent  case  of  Baltimore  &  P.  R.  Co.  v.  Fifth  Baptist  Church, 
108  U.  S.  317,  2  Sup.  Ct.  719,  27  L.  Ed.  739,  is  strongly  relied  on  by 
the  defendants  as  an  authority  in  their  favor.  There  are,  however, 
two  material  and  decisive  grounds  of  distinction  between  that  case 
and  this.  There  the  railroad  company  had  only  a  general  legislative 
authority  to  construct  works  necessary  and  expedient  for  the  proper 
completion  and  maintenance  of  its  railroad,  under  which  authority 
it  assumed  to  build  an  engine-house  and  machine-shop  close  by  an 
existing  church,  and  it  was  held  that  it  was  never  intended  to  grant 
a  license  to  select  that  particular  place  for  such  works,  to  the  nui- 
sance of  the  church.  Moreover,  in  that  case,  the  disturbance  was 
so  great  as  not  only  to  render  the  church  uncomfortable,  but  almost 
unendurable,  as  a  place  of  worship,  and  it  virtually  deprived  the 
owners  of  the  use  and  enjoyment  of  their  property.  We  do  not  un- 
derstand that  it  was  intended  to  lay  down,  as  a  general  rule  applica- 
ble to  all  cases  of  comparatively  slight,  though  real,  annoyance, 
naturally  and  necessarily  resulting,  in  a  greater  or  less  degree,  to 
all  owners  of  property  in  the  neighborhood,  from  a  use  of  property, 
or  a  method  of  carrying  on  a  lawful  business  which  clearly  falls  with1 
in  the  terms  and  spirit  of  a  legislative  sanction,  that  such  sanction 
will  not  affect  the  claim  of  such  owner  to  relief,  but,  rather,  that  the 
court  expressly  waived  the  expression  of  an  opinion  upon  the  point. 

In  this  commonwealth,  as  well  as  in  several  of  the  United  States 
and  in  England,  the  cases  already  cited  show  that  the  question  is  set- 
tled by  authority,  and  we  remain  satisfied  with  the  reasons  upon 
which  the  doctrine  was  here  established.  Courts  are  compelled  to 
recognize  the  distinction  between  such  serious  disturbances  as  ex- 
isted in  the  case  referred  to  and  comparatively  slight  ones,  which 
differ  in  degree  only,  and  not  in  the  kind,  from  those  suffered  by  oth- 
ers in  the  same  vicinity.  Slight  infractions  of  the  natural  rights  of 


NUISANCE.  471 

the  individual  may  be  sanctioned  by  the  legislature,  under  the  proper 
exercise  of  the  police  power,  with  a  view  to  the  general  good.  Grave 
ones  will  fall  within  the  constitutional  limitation  that  the  legislature 
is  only  authorized  to  pass  reasonable  laws.  The  line  of  distinction 
cannot  be  so  laid  down  as  to  furnish  a  rule  for  settling  all  cases  in 
advance.  The  difficulty  of  marking  the  boundaries  of  this  legislative 
power,  or  of  prescribing  limits  to  its  exercise,  was  declared  in  Com. 
v.  Alger,  7  Cush.  53,  85,  and  is  universally  recognized.  Courts,  how- 
ever, must  determine  the  rights  of  parties  in  particular  cases  as  they 
arise ;  always  recognizing  that  the  ownership  of  property  does  not 
of  itself  imply  the  right  to  use  or  enjoy  it  in  every  possible  manner, 
without  regard  to  corresponding  rights  of  others  as  to  the  use  and 
enjoyment  of  their  property ;  and  also  that  the  rules  of  the  common 
law,  which  have  from  time  to  time  been  established,  declaring  or 
limiting  such  rights  of  use  and  enjoyment,  may  themselves  be  changed 
as  occasion  may  require.  Munn  v.  Illinois,  94  U.  S.  113-134,  24  L. 
Ed.  77. 

In  the  case  before  us,  looking  at  it  for  the  present  without  regard 
to  the  decree  of  this  court  in  the  former  case  between  these  parties, 
we  find  nothing  in  the  facts  set  forth  which  show  that  the  statute  re- 
lied on,  as  authorizing  the  plaintiffs  to  ring  their  bell  (St.  1883,  c.  84), 
should  be  declared  unconstitutional.  It  is  virtually  a  license  to  man- 
ufacturers, and  others  employing  workmen,  to  carry  on  their  busi- 
ness in  a  method  deemed  by  the  legislature  to  be  convenient,  if  not 
necessary,  for  the  purpose  of  giving  notice,  by  ringing  bells  and  us- 
ing whistles  and  gongs,  in  such  manner  and  at  such  times  as  may 
be  designated  in  writing  by  municipal  officers.  In  character  it  is  not 
unlike  numerous  other  instances  to  be  found  in  our  statutes,  where 
the  legislature  has  itself  fixed,  or  has  authorized  municipal  or  other 
boards  or  officers  to  fix,  the  places,  times,  and  methods  in  which 
occupations  may  be  carried  on,  or  acts  done,  which  would  naturally 
be  attended  with  annoyance  to  individuals.  The  example  of  bells 
and  whistles  on  locomotive  engines  has  already  been  mentioned. 
Reference  may  also  be  made  to  the  statutes  regulating  the  use  of 
stationary  steam-engines,  the  places  and  manner  of  manufacturing 
or  keeping  petroleum,  of  carrying  on  other  offensive  trades  and  oc- 
cupations, of  storing  gunpowder,  and  of  establishing  hospitals,  sta- 
bles, and  bowling-alleys. 

The  defendants,  however,  contend  that  a  different  question  arises 
in  the  present  case,  where  the  plaintiffs  rely  upon  a  legislative  sanc- 
tion given  to  acts  after  it  had  been  determined  by  this  court  that  the 
doing  of  them  was  attended  with  a  peculiar  injury  to  the  defendants, 
which  entitled  them  to  a  remedy  as  for  a  nuisance.  There  can  be 
no  doubt  that  such  sanction  would  be  a  good  defense  to  an  indict- 
ment for  a  nuisance ;  or  to  a  proceeding  instituted  by  an  individual, 
whose  only  grievance  was  that  he  had  sustained  special  damage  in 


472  LAW  OF  TORTS. 

consequence  of  being  disturbed  in  the  enjoyment  of  some  public 
right,  such  as  a  right  to  travel  upon  a  highway  or  river.  His  public 
.right  may  clearly  be  regulated  and  controlled  by  the  legislature 
after  a  decision  by  the  court  as  well  as  before.  Com.  v.  Essex  Co., 
13  Gray,  239,  247.  But  the  argument  is  urged  upon  us  with  great 
force  that  in  the  present  case  there  had  been  a  judicial  determination 
that  the  ringing  of  the  bell,  at  the  hours  now  authorized  by  the  terms 
of  the  statute  and  the  designation  of  the  selectmen,  was  a  private 
nuisance  to  the  defendants,  not  growing  out  of  any  public  right,  and 
that  the  statute  ought  not,  as  a  matter  of  construction,  to  be  held 
applicable  to  this  case ;  or,  if  such  is  its  necessary  construction,  that 
it  is  unconstitutional,  as  interfering  with  their  vested  rights.  In  the 
first  place,  we  can  have  no  doubt  that  the  statute,  by  its  just  con- 
struction, is  in  its  terms  applicable  to  the  present  case.  It  is  un- 
doubtedly true  that  neither  a  general  authority  nor  a  particular  li- 
cense is  to  be  so  construed  as  to  be  held  to  sanction  what  was  not 
intended  to  be  sanctioned.  A  general  authority  is  not  necessarily  to 
be  treated  as  a  particular  license  (Com.  v.  Kidder,  107  Mass.  188) ; 
and  in  some  cases,  even  where  a  particular  license  or  authority  has 
been  given,  as  to  keep  an  inn,  ale-house,  or  slaughter-house  in  a 
particular  place,  which  is  specified,  this  authority  has  not  been  deemed 
to  sanction  the  keeping  of  it  in  an  improper  manner.  Rex  v. 
Cross,  2  Car.  &  P.  483;  Com.  v.  McDonough,  13  Allen,  581,  584; 
State  v.  Mullikin,  8  Blackf.  260 ;  U.  S.  v.  Elder,  4  Cranch,  C.  C.  507, 
Fed.  Cas.  No.  15,039.  And,  ordinarily,  a  statute  which  authorizes 
a  thing  to  be  done,  which  can  be  done  without  creating  a  nuisance, 
will  not  be  deemed  to  authorize  a  nuisance.  In  such  cases  it  is  not 
to  be  assumed  that  it  was  contemplated  by  the  legislature  that  what 
was  so  authorized  would  have  the  necessary  effect  to  create  a  nui- 
sance, or  that  it  would  be  done  in  such  a  manner  as  to  create  a  nui- 
sance; and,  if  a  nuisance  is  created,  there  will  in  such  cases  ordi- 
narily be  a  remedy  at  law  or  in  equity.  Eames  v.  Worsted  Co.,  II 
Mete.  (Mass.)  570;  Haskell  v.  New  Bedford,  108  Mass.  208,  215; 
Com.  v.  Kidder,  107  Mass.  188.  But,  on  the  other  hand,  the  author- 
ity to  do  an  act  must  be  held  to  carry  with  it  whatever  is  naturally 
incidental  to  the  ordinary  and  reasonable  performance  of  that  act. 
When  the  legislature  authorized  factory  bells  to  be  rung,  it  must  have 
been  contemplated  that  they  would  be  heard  in  the  neighborhood. 
That  is  a  natural  and  inevitable  consequence.  The  legislature  must 
be  deemed  to  have  determined  that  the  benefit  is  greater  than  the 
injury  and  annoyance,  and  to  have  intended  to  enact  that  the  public 
must  submit  to  the  disturbance  for  the  sake  of  the  greater  advantage 
that  would  result  from  this  method  of  carrying  on  the  business  of 
manufacturing.  It  must  be  considered,  therefore,  in  this  case,  that 
a  legislative  sanction  has  been  given  to  the  very  act  which  this  court 
found  to  create  a  private  nuisance.  It  is  then  argued  that  the  legis- 


NUISANCE.  473 

lature  cannot  legalize  a  nuisance,  and  cannot  take  away  the  rights 
of  the  defendants  as  they  have  been  ascertained  and  declared  by  this 
court ;  and  this  is  undoubtedly  true,  so  far  as  such  rights  have  be- 
come vested.  For  example,  if  the  plaintiff,  under  an  existing  rule  of 
law,  has  a  right  of  action  to  recover  damages  for  a  past  injury  suf- 
fered by  him,  his  remedy  cannot  be  cut  off  by  an  act  of  the  legisla- 
ture. So,  also,  if,  in  a  suit  in  equity  to  restrain  the  continuance  of  a 
nuisance,  damages  have  been  awarded  to  him,  or  costs  of  suit,  he 
would  have  an  undoubted  right  to  recover  them,  notwithstanding  the 
statute.  But,  on  the  other  hand,  the  legislature  may  define  what  in 
the  future  shall  constitute  a  nuisance,  such  as  will  entitle  a  person 
injured  thereby  to  a  legal  or  equitable  remedy,  and  may  change  the 
existing  common-law  rule  upon  the  subject.  It  may  declare,  for  the 
future,  in  what  manner  a  man  may  use  his  property  or  carry  on  a 
lawful  business  without  being  liable  to  an  action  in  consequence 
thereof;  that  is,  it  may  define  what  shall  be  a  lawful  and  reasonable 
mode  of  conduct.  This  legislative  power  is  not  wholly  beyond  the 
control  of  the  courts,  because  it  is  restrained  by  the  constitutional 
provision  limiting  it  to  wholesome  and  reasonable  laws,  of  which 
the  court  is  the  final  judge ;  but,  within  this  limitation,  the  exercise 
of  the  police  power  of  the  legislature  will  apply  to  all  within  the 
scope  of  its  terms  and  spirit.  The  fact  that  the  rights  of  citizens, 
as  previously  existing,  are  changed,  is  a  result  which  always  happens. 
It  is,  indeed,  in  order  to  change  those  rights  that  the  police  power 
is  exercised.  So  far  as  regards  the  rights  of  parties  accruing  after 
the  date  of  the  statute,  they  are  to  be  governed  by  the  statute.  Their 
rights  existing  prior  to  that  date  are  not  affected  by  it.  To  illustrate 
this  view,  let  it  be  supposed  that  the  case  between  the  present  parties 
in  its  original  stage  had  been  determined  in  favor  of  the  manufac- 
turers, under  which  decision  they  would  have  had  a  right  to  ring 
their  bell ;  and  that  afterwards  a  statute  had  been  passed  providing 
that  manufacturers  should  not  ring  bells,  except  at  such  hours  as 
might  be  approved  by  the  selectmen ;  and  that  these  manufacturers 
had  then  proceeded  to  ring  their  bell  at  other  hours  not  included 
in  such  approval.  It  certainly  could  not  be  said  that  they  had  a 
vested  right  to  do  so,  under  the  decision  of  the  court. 

The  injunction  which  was  awarded  by  the  court,  upon  the  factr 
which  appeared  at  the  hearing,  did  not  imply  a  vested  right  in  the 
present  defendants  to  have  it  continued  permanently.  Though  a 
final  determination  of  the  case  before  the  court,  and  though  binding 
and  imperative  upon  the  present  plaintiffs,  and  enforceable  against 
them  by  all  the  powers  vested  in  a  court  of  equity,  yet  they  were  at 
liberty  at  any  time,  under  new  circumstances  making  it  inequitable 
for  it  to  be  longer  continued,  to  apply  to  the  court  for  a  review  of  the 
case  and  a  dissolution  of  the  injunction.  In  respect  to  such  a  state 
of  facts,  an  injunction  can  never  be  said  to  be  final,  in  the  sense  that 


i74  LAW  OF  TORTS. 

it  is  absolute  for  all  time.  Even  without  any  new  legislation  affect- 
ing the  rights  of  the  parties,  with  an  increase  of  their  own  business, 
and  a  general  increase  of  manufacturing  and  other  business  in  the 
vicinity,  and  of  a  general  and  pervading  change  in  the  character  of 
the  neighborhood,  it  might  be  very  unreasonable  to  continue  an  in- 
junction which  it  was  in  the  first  instance  entirely  reasonable  and 
proper  to  grant.  The  ears  of  the  court  could  not,  under  such  new 
circumstances,  be  absolutely  shut  to  an  application  for  its  modifica- 
tion without  any  new  statute  declaring  the  policy  of  the_  common- 
wealth in  respect  to  any  branch  of  business  or  employment.  But  a 
declaration  by  the  legislature  that,  in  its  judgment,  it  is  reasonable 
and  necessary  for  certain  branches  of  business  to  be  carried  on  in 
particular  ways,  notwithstanding  the  incidental  disturbance  and  an- 
noyance to  citizens,  is  certainly  a  change  of  circumstances  which  is 
entitled  to  the  highest  consideration  of  the  court ;  and  in  the  present 
case  we  cannot  doubt  that  it  is  sufficient  to  entitle  the  plaintiffs  to 
relief  from  the  operation  of  the  injunction. 

The  method  of  procedure  to  which  the  plaintiffs  have  resorted  is 
the  usual  and  proper  one  in  such  circumstances.  2  Daniell's  Ch.  PI. 
(4th  Amer.  Ed.)  1577,  note  3;  Story,  Eq.  PI.  §  404  et  seq. ;  Clapp  v. 
Thaxter,  7  Gray,  384.  And,  for  authorities  tending  to  show  that 
the  plaintiffs  are  entitled  to  the  relief  which  they  seek  in  conse- 
quence of  a  subsequent  statute  changing  the  rights  of  the  parties, 
see  Pennsylvania  v.  Bridge  Co.,  18  How.  421,  15  L.  Ed.  435;  In  re 
Clinton  Bridge,  10  Wall.  454,  463,  19  L.  Ed.  969;  Oilman  v.  Phila- 
delphia, 3  Wall.  713,  732,  18  L.  Ed.  96;  South  Carolina  v.  Georgia, 
93  U.  S.  4,  12,  23  L.  Ed.  782 ;  Bridge  Co.  v.  U.  S.,  105  U.  S.  470,  480, 

26  L.  Ed.  1143;    Com.  v.  Railroad  Co.,  14  Gray,  93,  97;    Bartholo- 
mew v.  Harwinton,  33  Conn.  408. 

Demurrer  overruled. 

(See  also  Cogswell  v.  Railroad  Co.,  103  N.  Y.  10,  8  N.  E.  537,  57  Am.  Rep. 
701 ;  Miller  v.  Mayor,  etc.,  109  U.  S.  385,  3  Sup.  Ct  228,  27  L.  Ed.  971 ;  Bal- 
timore &  P.  R.  Co.  v.  Fifth  Baptist  Church,  108  U.  S.  317,  2  Sup.  Ct.  719, 

27  L.  Ed.  739;    Village  of  Pine  City  v.  Munch,  42  Minn.  342,  44  N.  W.  197, 
6  L.  R.  A.  763;    Railroad  Co.  v.  Truman,  L.  R.  11  App.  Cas.  45.     When  the 
power  given  by  statute  is  exceeded  and  the  excess  causes  the  nuisance,  the 
party  injured  has  a  remedy ;    and  so  if  the  legislative  authority  could  be  ex- 
ercised  without   causing   a   nuisance,    and   yet   it   is   so   carried   into   effect 
that  a  nuisance  is  occasioned.     Id.,  Morton  v.  Mayor  of  New  York,  140  N. 
Y.  207,  35  N.  E.  490,  22  L.  R.  A.  241 ;    Delaware,  L.  &  W.  R.  Co.  v.  Buffalo, 
158  N.  Y.  266,  53  N.  E.  44;    McAndrews  v.  Collerd,  42  N.  J.  Law,  189,  36 
Am.   Rep.    508.      Sometimes   the   authority    given   practically    necessitates   a 
"taking"  of  another's  property,  and  in  such  cases  there  must  be  compensa- 
tion paid  under  the  doctrine  of  "eminent  domain."     Garvey  v.  Long  Island 
R.  Co.,  159  N.  Y.  323,  54  N.  E.  57,  70  Am.  St  Rep.  550;    Long  Island  R.  Co. 
v.  Garvey,  159  N.  Y.  334,  54  N.  E.  60;    Pennsylvania  R.  Co.  v.  Angel,  41  N. 
J.  Eq.  316,  7  Atl.  432,  56  Am.  Rep.  1 ;    cf.  Beseman  v.  Pennsylvania  R.  Co.,  50 
N.  J.  Law,  235,  245,  13  Atl.  164,  affirmed  52  N.  J.  Law,  221,  20  Atl.   169; 
Lincoln  v.  Com.,  164  Mass.  368,  374,  41  N.  E.  489.) 


NUISANCE.  475 


VI.  ABATEMENT  OF  NUISANCE. 

(11  Mees.  &  W.  176.) 

JONES  v.  WILLIAMS. 

(Court  of  Exchequer.    January  28,  1843.) 

1.  NUISANCE— ABATEMENT— NOTICE  TO  REMOVE. 

A  person  has  no  right  to  enter  upon  the  land  of  another  to  abate  a 
nuisance  of  filth,  without  previous  request  or  notice  to  the  occupant  to 
remove  it,  unless  it  appears  that  such  occupant  was  the  original  wrong- 
doer by  placing  it  there,  or  possibly  that  it  arises  from  a  default  in  the 
performance  of  some  duty  or  obligation  incumbent  upon  him,  or  that  the 
nuisance  is  immediately  dangerous  to  life  or  health,  rendering  it  unsafe 
to  wait 

2.  SAME. 

Such  request  or  notice  to  the  occupant  Is  necessary,  if,  when  he  acquired 
possession  of  the  land,  the  nuisance  already  existed  upon  It,  and  he 
simply  omitted  to  remove  it. 

Rule  to  show  cause  why  judgment  should  not  be  entered  for  plain- 
tiff non  obstante  veredicto. 

Action  of  trespass  to  land  brought  by  Jones  against  Williams. 
Defendant  by  his  plea  justified  the  entry  to  abate  a  nuisance  of  filth 
permitted  by  plaintiff  upon  his  adjoining  lands.  The  verdict  was  for 
defendant.  Plaintiff  obtained  a  rule  to  show  cause  why  judgment 
should  not  be  entered  in  his  favor  non  obstante  veredicto. 

PARKE,  B.  A  rule  was  obtained  in  this  case  by  Mr.  Erie  for 
judgment  non  obstante  veredicto  on  the  fourth  plea  found  for  the 
defendant,  and  argued  a  few  days  ago.  This  plea,  to  an  action  of 
trespass  quare  clausum  fregit,  stated  that  the  defendant,  before  and 
at  the  said  time  when,  etc.,  was  possessed  of  a  dwelling-house  near 
the  locus  in  quo,  and  dwelt  therein ;  and  that  the  plaintiff,  before 
and  at,  etc.,  injuriously  and  wrongfully  permitted  and  suffered  large 
quantities  of  dirt,  filth,  manure,  compost,  and  refuse  to  be,  remain, 
and  accumulate  on  the  locus  in  quo,  by  reason  whereof  divers  nox- 
ious, offensive,  and  unwholesome  smells,  etc.,  came  from  the  close 
into  the  defendant's  dwelling-house ;  and  then  the  defendant  justifies 
the  trespass  by  entering  in  order  to  abate  the  nuisance,  and  in  so  do- 
ing damaging  the  wall,  and  digging  up  the  soil.  The  question  for 
us  to  decide  is  whether  this  plea  is  bad  after  verdict,  and  we  are  of 
opinion  that  it  is.  The  plea  does  not  state  in  what  the  wrongful  per- 
mission.of  the  plaintiff  consisted;  whether  he  was  a  wrong-doer  him- 
self, by  originally  placing  the  noxious  matter  on  his  close,  and  aft- 
erwards permitting  it  to  continue ;  or  whether  it  was  placed  by  an- 
other, and  he  omitted  to  remove  it;  or  whether  he  was  under  an 
obligation,  by  prescriptive  usage  or  otherwise,  to  cleanse  the  place 


476  LAW  OF  TORTS. 

where  the  nuisance  was,  and  he  omitted  to  discharge  that  obligation, 
whereby  the  nuisance  was  created.  The  proof  of  any  of  these  three 
circumstances  would  have  supported  the  plea ;  and  if  in  none  of  the 
three  cases  a  notice  to  remove  the  nuisance  was  necessary  before  an 
entry  could  take  place,  the  plea  is  good;  but  if  notice  was  necessary 
in  any  one,  the  plea  is  bad,  by  reason  of  its  neither  containing  an 
averment  that  such  a  notice  was  given,  nor  showing  that  the  con- 
tinuance was  of  such  a  description  as  not  to  require  one. 

It  is  clear  that  if  the  plaintiff  himself  was  the  original  wrong-doer, 
by  placing  the  filth  upon  the  locus  in  quo,  it  might  be  removed  by 
the  party  injured,  without  any  notice  to  the  plaintiff ;  and  so,  possibly, 
if  by  his  default  in  not  performing  some  obligation  incumbent  on  him, 
for  that  is  his  own  wrong  also;  but  if  the  nuisance  was  levied  by 
another,  and  the  defendant  succeeded  to  the  possession  of  the  locus 
in  quo  afterwards,  the  authorities  are  in  favor  of  the  necessity  of  a 
notice  being  given  to  him  to  remove,  before  the  party  aggrieved 
can  take  the  law  into  his  own  hands. 

We  do  not  rely  on  the  decision  in  Earl  of  Lonsdale  v.  Nelson,  2 
Barn.  &  C.  302,  3  Dow.  &  R.  556,  as  establishing  the  necessity  of 
notice  in  such  a  case,  for  there  much  more  was  claimed  than  a  right 
to  remove  a  nuisance,  viz.,  a  right  to  construct  a  work  on  the  plain- 
tiff's soil,  which  no  authority  warranted ;  but  Lord  Wynford's  dictum 
is  in  favor  of  this  objection,  for  he  states  that  a  notice  is  requisite  in 
all  cases  of  nuisance  by  omission,  and  the  older  authorities  fully 
warrant  that  opinion,  where  the  omission  is  the  non-removal  of  a 
nuisance  erected  by  another.  Penruddock's  Case,  5  Coke,  loia, 
shows  that  an  assize  of  quod  permittat  prosternere  would  not  lie 
against  the  alienee  of  the  party  who  levied  it,  without  notice.  The 
judgment  in  that  case  was  affirmed  on  error ;  and  in  the  king's  bench, 
on  the  argument,  the  judges  of  that  court  agreed  that  the  nuisance 
might  be  abated,  without  suit,  in  the  hands  of  the  feoffee — that  is. 
as  it  should  seem,  with  notice ;  for  in  Jenkin's  Sixth  Century  Case, 
57  (no  doubt  referring  to  Penruddock's  Case),  the  law  is  thus  stated : 
"A  builds  a  house  so  that  it  hangs  over  the  house  of  B,  and  is  a  nui- 
sance to  him.  A  makes  a  feoffment  of  his  house  to  C,  and  B  a 
feoffment  of  his  house  to  D,  and  the  nuisance  continues.  Now,  D 
cannot  abate  the  said  nuisance,  or  have  a  quod  permittat  for  it,  be- 
fore he  makes  a  request  to  C  to*  abate  it,  for  C  is  a  stranger  to  the 
wrong.  It  would  be  otherwise  if  A  continued  his  estate,  for  he  did 
the  wrong.  If  nuisances  are  increased  after  several  feoffments,  these 
increases  are  new  nuisances,  and  may  be  abated  without  request." 
"We  think  that  a  notice  or  request  is  necessary,  upon  these  authori- 
ties, in  the  case  of  a  nuisance  continued  by  an  alienee ;  and  there- 
fore the  plea  is  bad,  as  it  does  not  state  that  such  a  notice  was  given 
or  request  made,  nor  that  the  plaintiff  was  himself  the  wrong-doer, 


NUISANCE.  477 

•by  having  levied  the  nuisance,  or  neglected  to  perform  some  obliga- 
tion by  the  breach  of  which  it  was  created. 

AB1NGER,  C.  B.,  observed  that  it  might  be  necessary  in  some 
cases,  where  there  was  such  immediate  danger  to  life  or  health  as  to 
render  it  unsafe  to  wait,  to  remove  without  notice,  but  then  it  should 
be  so  pleaded ;  in  which  the  rest  of  the  court  concurred. 

Rule  absolute. 

(The  owner  of  land  which  is  overhung  by  trees  growing  on  his  neighbor's 
land  is  entitled,  without  notice,  if  he  does  not  trespass  on  his  neighbor's  land, 
to  cut  the  branches  so  far  as  they  overhang,  though  they  have  done  so  for 
more  than  twenty  years.  Lemmon  v.  Webb  [1894]  A.  C.  1 ;  cf.  Hickey  v. 
Michigan  Cent.  R.  Co.,  96  Mich.  498,  55  N.  W.  989,  21  L.  R.  A.  729,  35  Am. 
St.  Rep.  621;  Countryman  v.  Lighthill,  24  Hun,  405. 

Whoever,  in  abating  an  alleged  nuisance,  destroys  or  injures  private  prop- 
erty, or  interferes  with  private  rights,  acts  at  his  peril,  and  will  be  held 
liable,  unless,  when  his  act  is  challenged  in  court,  it  appears  that  the  thing 
abated  was  in  fact  a  nuisance.  People  v.  Board  of  Health,  140  N.  Y.  1,  35 
N.  E.  320,  37  Am.  St.  Rep.  522;  Graves  v.  Shattuck,  35  N.  H.  257,  69  Am. 
Dec.  536;  Cole  v.  Kegler,  64  Iowa,  59,  19  N.  W.  843;  Fields  v.  Stokley,  99 
Pa.  306,  44  Am.  Rep.  109.) 


(18  R.  I.  473,  28  Atl.  968.) 

STATE  v.  WHITE  et  al.  (in  part). 

(Supreme'  Court  of  Rhode  Island.     February  17,  1894.) 

PUBLIC  NUISANCE— SPECIAL  INJURY— ABATEMENT  BY  PRIVATE  PERSON — MUST 
BE  NO  BREACH  OF  THE  PEACE. 

On  trial  on  indictment  for  assault  with  intent  to  kill,  it  appeared  that 
A  maintained  a  gate  across  a  highway  leading  to  a  beach  where  de- 
fendant W  had  a  seaweed  privilege,  and  tried  to  prevent  defendants,  who 
came  there  with  the  intention  of  forcing  the  gate  in  case  of  resistance, 
from  going  through  on  their  way  to  the  beach,  whereupon  defendant^ 
forced  the  gate  and  provoked  a  fight,  resulting  in  injuries  to  A,  for  as- 
saulting whom  defendants  were  indicted.  Held,  that  although  A  was 
maintaining  a  public  nuisance,  which  was  a  source  of  special  injury  to  W, 
defendants  were  not  justified  in  causing  a  breach  of  the  peace  to  over- 
come his  resistance. 

Prosecution  against  Isaac  White  and  Emerson  Ash.  Defendants 
were  convicted,  and  petitioned  for  a  new  trial.  Petition  denied. 

TILLJNGHAST,  J.  This  is  an  indictment  against  the  defendants, 
charging  an  assault  on  one  Samuel  E.  Almy,  with  intent  to  kill  and 
murder.  At  the  trial  of  the  case  in  the  court  of  common  pleas  the 
defendants  were  found  guilty  of  an  assault  with  a  dangerous  weapon, 
and  they  now  petition  for  a  new  trial  on  the  ground  that  the  verdict 
is  against  the  evidence,  and  that  the  presiding  justice  erred  in  his 
rulings  of  law  and  in  his  instructions  to  the  jury. 


478  LAW  OP  TORTS. 

Briefly  summarized,  the  evidence  submitted  shows  that  the  de- 
fendants were  lawfully  on  a  public  highway,  going  to  the  beach,  to 
collect  White's  property,  the  seaweed  which  was  there;  that  said 
Almy  had  illegally  obstructed  the  highway  by  maintaining  the  gate 
across  the  same,  which  was  a  public  nuisance,  and  which  specially 
damnified  the  defendant  White ;  that  Almy  refused  to  allow  the  gate 
to  be  opened,  and  aggressively  defended  the  same  by  holding  it  to 
prevent  it  from  being  opened,  and  attacking  the  vehicle  and  the  oxen 
of  the  defendants,  while  the  latter  were  striving  to  force  their  way 
through;  and  that  during  or  immediately  after  the  removal  of  said 
obstruction  in  the  manner  aforesaid,  a  personal  encounter  ensued 
between  the  defendants  and  Almy,  in  which  the  latter  received  the 
injuries  complained  of,  and  also  in  which,  according  to  defendants' 
testimony,  White  was  knocked  down  and  rendered  insensible  by 
Almy,  and  Ash  was  also  beaten  by  him  with  a  stick. 

The  first  question  which  arises  in  view  of  this  state  of  facts  is 
whether  the  presiding  justice  erred  in  his  refusal  to  instruct  the  jury 
as  requested  by  the  defendants'  counsel :  (i)  "That  if  the  jury  finds 
that  the  defendants  and  their  cart  were  on  this  highway  intending 
to  take  the  most  direct  track  to  the  beach  and  salt  water  for  their 
seaweed,  and  that  Almy  interrupted  them,  Almy,  and  not  they,  was 
the  aggressor;"  (2)  "that  if  the  jury  find  that  these  parties  were 
attacked  while  upon  a  public  highway  of  the  state,  Almy,  and  not 
they,  was  the  aggressor."  The  answer  to  this  question  depends 
upon  the  correctness  of  the  defendants'  contention  as  to  their  legal 
right  to  remove  said  obstruction  by  force,  while  the  complainant 
was  present  and  actively  defending  the  same.  If  they  had  this  right, 
then  Almy,  and  not  they,  was  the  aggressor,  and  said  request  to 
charge  should  have  been  granted;  otherwise  not.  We  think  it  is 
well  settled,  notwithstanding  some  decisions  and  dicta  to  the  con- 
trary, that  a  private  person  may  not,  of  his  own  motion,  abate  a 
strictly  public  nuisance.  Dimes  v.  Petley,  15  Q.  B.  276;  Brown  v. 
Perkins,  12  Gray,  89 ;  Griffith  v.  McCullum,  46  Barb.  561  ;  Wood, 
Nuis.  §§  729-737,  and  cases  cited;  Bowden  v.  Lewis,  13  R.  I.  189.  It 
is  also  equally  well  settled  that  a  private  person  may,  of  his  own 
motion,  abate  a  public  nuisance,  where  the  existence  thereof  is  a 
source  of  special  injury  to  him,  provided  he  can  do  so  without  a 
breach  of  the  peace.  3  Bl.  Comm.  5 ;  16  Am.  &  Eng.  Enc.  Law, 
990-994,  and  cases  cited;  State  v.  Keeran,  5  R.  I.  497,  510;  Clark 
v.  Ice  Co.,  24  Mich.  508;  Mayor  of  Colchester  v.  Brooke,  7  Q.  B. 
339;  Rung  v.  Shoneberger,  2  Watts,  23,  26  Am.  Dec.  95;  4  Wait, 
Act.  &  Del".  778,  and  cases  cited ;  Day  v.  Day,  4  Md.  262,  270 ;  State 
v.  Flannagan,  67  Ind.  140.  In  Cooley  on  Torts  (2d  Ed.  pp.  48,  49) 
the  law  is  well  stated  as  follows:  "The  question  who  may  abate  a 
nuisance  may  depend  upon  whether  the  nuisance  is  public  or  pri- 
vate. If  it  is  a  private  nuisance,  he  only  can  abate  it  who  is  injured 


NUISANCES.  479 

by  its  continnance ;  if  it  is  a  public  nuisance,  he  only  may  abate  it 
who  suffers  a  special  grievance,  not  felt  by  the  public  in  general. 
Therefore,  if  one  places  an  obstruction  in  a  public  street,  an  individual 
who  is  incommoded  by  it  may  remove  it ;  but  unless  he  has  occasion 
to  make  use  of  the  highway,  he  must  leave  the  public  injury  to  be 
redressed  by  the  public  authorities.  It  is  the  existence  of  an  emer- 
gency which  justifies  the  interference  of  the  individual.  In  permitting 
this  redress,  certain  restrictions  are  imposed  to  prevent  abuse  or  un- 
necessary injury.  One  of  these  is  that  the  right  must  not  be  exer- 
cised to  the  prejudice  of  the  public  peace.  Therefore,  if  the  abate- 
ment is  resisted,  it  becomes  necessary  to  seek  in  the  courts  the  ordi- 
nary legal  remedies." 

This  being  the  law,  the  question  which  naturally  arises  is,  did  the  de- 
fendants commit  a  breach  of  the  peace  in  the  abatement  of  the  "nuisance 
in  question  ?  We  think  they  did.  They  went  with  the  evident  intention 
of  breaking  open  the  gate  by  overcoming  whatever  force  Almy  might 
oppose  to  them.  They  were  armed  with  a  pitchfork,  a  hoe,  and  a  pistol. 
They  used  violent  and  profane  language  in  a  public  highway,  in  the 
presence  of  at  least  six  persons.  They  backed  their  team  against  the 
gate  while  Almy  and  Hussey  were  on  the  opposite  side  thereof,  the 
latter  holding  the  gate,  and  the  former  striving  to  prevent  the  cart  from 
going  through.  They  provoked  a  quarrel,  and  brought  on  a  personal 
encounter.  In  short,  they  went  to  the  place  in  question  prepared  for, 
and  evidently  expecting,  a  fight  in  connection  with  the  abatement  of  the 
nuisance,  and  they  were  not  disappointed.  They  took  the  law  into  their 
own  hands,  and  in  doing  so  they  acted  at  their  peril.  That  Almy  was 
in  the  wrong,  and  liable  to  indictment  for  maintaining  the  nuisance,  as 
well  as  for  the  use  of  violence  against  the  defendants,  may  be  as- 
sumed; but  this  fact  did  not  justify  the  defendants  in  committing 
a  breach  of  the  peace  in  abating  it,  the  public  peace  being  of  more 
importance  than  the  assertion  of  the  defendants'  right  to  use  said 
highway.  We  are  therefore  of  the  opinion  that  the  defendants,  and 
not  Almy,  were  the  aggressors  in  the  affray  referred  to,  ana  hence 
that  the  presiding  justice  properly  refused  to  charge  as  requested. 

Petition  for  a  new  trial  denied  and  dismissed. 

(As  to  causing  a  breach  of  the  peace,  see  also  Turner  v.  Holtzman,  54 
Md.  148,  39  Am.  Rep.  361 ;  People  v.  Severance,  125  Mich.  556,  84  N.  W.  1088, 
51  L.  R.  A.  461,  84  Am.  St.  Rep.  584. 

"The  general  proposition  has  been  asserted  in  text-books,  and  repeated  in 
judicial  opinions,  that  any  person  may  abate  a  public  nuisance.  But  the  best 
considered  authorities  in  this  country  and  in  England  now  hold  that  a 
public  nuisance  can  only  be  abated  by  an  individual  where  it  obstructs  his 
private  right,  or  interferes  at  the  time  with  his  enjoyment  of  a  right  com- 
mon to  many,  as  the  right  of  passage  upon  the  public  highway,  and  h«. 
thereby  sustains  a  special  injury."  Lawton  v.  Steele,  119  N.  Y.,  at  page  237, 
23  N.  E.  880,  7  L.  R.  A.  134,  16  Am.  St  Rep.  813.  See,  to  the  same  effect, 
Corthell  v.  Holmes,  87  Me.  24,  32  Atl.  715 ;  Brown  v.  De  Groff,  50  N.  J.  Law, 
109,  14  Atl.  219,  7  Am.  St  Rep.  794;  People  v.  Severance,  supra;  Wolfe  T. 


480  LAW   OF   TORTS, 

Pearson,  114  N.  C.  621,  19  S.  B.  264;  Griffith  v.  Holman,  23  Wash.  347,  63 
Pac.  239,  54  L.  R.  A.  178,  83  Am.  St.  Rep.  821 ;  narrower  v.  Ritson,  37  Barb. 
301 ;  Godsell  v.  Fleming,  59  Wis.  52,  17  N.  W.  679.) 


(65  Me.  426,  20  Am.  Rep.  711.) 

BRIGHTMAN  et  al.  v.  INHABITANTS  OF  BRISTOL  (In  part). 
(Supreme  Judicial  Court  of  Maine.    August  31,  1876.) 

L  NUISANCE — ABATEMENT. 

That  a  porgy  oil  factory,  not  in  itself  unlawful,  becomes  a  nuisance 
on  account  of  its  location  and  the  almost  unbearable  smells  which  it  pro- 
duces, does  not  justify  its  destruction  by  a  mob  on  their  own  responsi- 
bility, even  though  there  is  a  statute  in  force  which  gives  the  power  to 
abate  such  a  nuisance,  after  conviction  upon  due  process  of  law. 

2.  SAME— REMEDY. 

Where  a  nuisance  consists  of  the  use  of  a  building,  the  proper  method 
to  abate  it  is  to  stop  that  use,  and  not  to  destroy  the  building  itself. 

APPLETON,  C.  J.  This  is  an  action  on  the  case,  under  Rev.  St. 
1857,  c.  123,  §  8,  to  recover  three-fourths  of  the  value  of  a  porgy  oil 
factory,  alleged  to  have  been  burnt  and  destroyed  by  a  mob  on  29th 
April,  1868.  A  verdict  was  rendered  in  favor  of  the  plaintiffs,  and 
the  case  comes  before  us  upon  exceptions  to  the  rulings  of  the  pre- 
siding justice. 

The  defendants'  counsel  offered  to  show  that  strong  and  offensive 
odors  arose  from  the  plaintiff's  factory,  and  that  it  was  a  public  nui- 
sance, and  a  nuisance  to  those  residing  in  its  vicinity,  but  all  evidence 
to  show  the  factory  a  nuisance  was  excluded. 

It  may  be  conceded  that  the  factory  is  a  nuisance,  within  the  pro- 
visions of  Rev.  St.  1857,  c.  17,  §  i,  and  that  the  noxious  exhalations, 
offensive  smells,  and  stench  arising  from  its  operations  approximate 
to  the  unbearable.  But  the  manufacture  is  not,  in  and  of  itself,  un- 
lawful. It  is  not  prohibited.  It  is  sanctioned,  if  carried  on  in  a 
place  which  has  been  duly  assigned  for  such  manufacture.  The 
statute  does  not  require  the  destruction  of  the  buildings  or  of  the 
machinery  used  in  its  operations,  but  that  the  business  should  not  be 
carried  on  at  a  place  where  from  its  location  it  would  be  a  nuisance. 
The  statute,  giving  the  power  of  abatement  after  conviction  upon  due 
process,  does  not  in  addition  confer  upon  an  irresponsible  public 
the  right  to  enforce  the  penalties  it  establishes  without  process  of 
law.  A  lawful  business  may  so  be  carried  on  as  to  become  a  nui- 
sance. Undoubtedly  in  certain  cases  and  under  certain  limitations 
nuisances  may  be  abated  by  those  specially  aggrieved  thereby.  But 
when  the  subject-matter  of  complaint  is  lawful  per  se,  and  the  nui- 
sance consists  not  in  the  business  itself,  but  in  the  unsuitable  place 
in  which  it  is  carried  on,  its  abatement  must  be  by  the  judgment  of 


NUISANCE.  481 

the  court,  and  by  the  officers  of  the  law  carrying  into  effect  such 
judgment,  and  not  by  the  blind  fury  of  a  tumultuous  mob.  Only 
so  much  must  be  abated  as  constitutes  the  nuisance.  If  it  consists 
in  the  use  of  a  building,  such  use  must  be  prohibited  and  punished. 
If  the  location  is  what  constitutes  the  nuisance,  it  must  be  removed. 
A  smith's  forge,  in  Bradley  v.  Gill,  Lutw.  [29]  ;  a  tobacco  mill,  in 
Jones  v.  Powell,  Hut.  136;  a  manufactory  for  spirits  of  sulphur,  in 
White's  Case,  I  Burr.  333 ;  a  distillery,  in  Smiths  v.  McConathy,  1 1 
Mo.  517;  a  slaughter  house,  in  Brady  v.  Weeks,  3  Barb.  157;  a  liv- 
ery stable,  in  Coker  v.  Birge,  10  Ga.  336;  a  melting  house,  in  Peck 
v.  Elder,  3  Sandf.  126;  a  gaming  house  or  grog  shop,  in  State  v. 
Paul,  5  R.  I.  185 ;  a  powder  magazine,  in  Cheatham  v.  Shearon,  I 
Swan,  213 ;  a  blacksmith  shop,  in  Norcross  v.  Thorns,  51  Me.  503, 
81  Am.  Dec.  588 ;  a  tallow  factory,  in  Allen  v.  State,  34  Tex.  230 ;  a 
tannery,  in  Rex  v.  Pappineau,  I  Strange,  686 — have  been  declared 
nuisances,  because  of  their  unsuitable  location,  but  that  will  not 
justify  a  riotous  mob  in  burning  and  destroying  them.  A  tomb  erect- 
ed upon  one's  own  land  is  not  necessarily  a  nuisance ;  but  it  may 
become  such  from  its  location.  Barnes  v.  Hathorn,  54  Me.  125.  But 
it  is  not,  therefore,  to  be  destroyed.  Its  use  may  be  prohibited.  The 
plaintiffs'  porgy  oil  factory  stands  upon  the  same  ground. 

These  views  are  sustained  by  an  almost  unbroken  series  of  de- 
cisions. In  Barclay  v.  Com.,  25  Pa.  503,  64  Am.  Dec.  715,  the  nui- 
sance for  which  the  defendant  was  indicted  was  the  maintenance  and 
continuance  of  a  barn  near  to  and  above  a  spring  reserved  for  the 
inhabitants  of  Bedford  for  supplying  their  general  pump  with  water ; 
and  the  indictment  charged  that  by  storing  hay  and  feeding  cattle 
the  water  of  the  spring  was  rendered  impure,  corrupted,  and  unfit 
for  use.  Upon  the  question  whether  the  sheriff  should  abate  the 
nuisance  by  removing  the  barn,  Woodward,  J.,  says:  "The  offense 
lay  in  the  use  made  of  the  barn  and  yard  in  close  proximity  to  the 
spring,  and  the  nuisance  would  be  effectually  abated  by  discontinu- 
ing such  use.  When  an  erection  or  structure  itself  constitutes  the 
nuisance,  as  when  it  is  put  up  in  a  public  street,  its  demolition  or  re- 
moval is  necessary  to  the  abatement  of  the  nuisance;  but  when  the 
offense  consists  in  a  wrongful  use  of  a  building,  harmless  in  itself,  the 
remedy  is  to  stop  such  use,  not  to  tear  down  or  remove  the  building 
itself."  In  Gray  v.  Ayres,  7  Dana,  375,  32  Am.  Dec.  107,  it  was 
held  that  what  constitutes  the  nuisance  should  be  abated,  but  not  by 
the  destruction  of  the  house,  the  use  of  which  and  the  practices 
therein  constituted  the  nuisance,  and  not  the  house  itself.  "Al- 
though," remarks  Marshall,  J.,  "the  destruction  of  the  house  might 
have  been  the  most  effectual  mode  of  suppressing  the  nuisance,  yet 
the  house  itself  was  not  a  nuisance,  nor  necessarily  the  cause  of  one, 
its  destruction  was  not  a  necessary  means  of  abating  the  nuisance, 
and  as  the  right  of  abating  is  confined  to  that  which  is  the  nuisance. 
CHASE  (2o  ED.) — 31 


482  LAW  OF  TORTS. 

or  which  actually  produces  or  must  necessarily  produce  it,  the  right 
upon  the  case  made  out  in  the  plea  did  not  extend  to  the  destruc- 
tion of  the  house."  The  same  views  are  fully  sustained  in  Massa- 
chusetts by  the  opinion  of  Shaw,  C.  J.,  in  Brown  v.  Perkins,  12  Gray, 
89,  and  in  Rhode  Island  by  that  of  Ames,  C.  J.,  in  State  v.  Paul,  5 
R.  I.  185. 

When  it  is  the  use  of  the  building  which  constitutes  the  nuisance, 
the  abatement  consists  in  putting  a  stop  to  such  use.  The  law  allows 
its  officers,  in  execution  of  its  sentence  only,  to  do  what  is  necessary 
to  abate  the  nuisance  and  nothing  more ;  a  fortiori,  it  will  not  sanc- 
tion destruction  without  limit  by  individuals.  It  would  be  absurd 
to  hold  that  a  manufactory  lawful  in  itself,  but  producing  "offensive 
smells,"  is  at  the  mercy  of  every  passer-by  whose  olfactory  nerves 
are  disagreeably  affected  by  its  necessary  processes. 

Exceptions  overruled. 

(See,  to  the  same  effect,  Welch  v.  Stowell,  2  Doug.  332  ;  Moody  v.  Supervisors 
of  Niagara  Co.,  46  Barb.  650;  Ely  v.  Supervisors  of  Niagara  Co.,  36  N.  Y. 
297;  Health  Dept.  v.  Dassori,  21  App.  Div.  348,  47  N.  Y.  Supp.  641;  Id., 
159  N.  Y.  245,  54  N.  E.  13 ;  Larson  v.  Furlong,  50  Wis.  681,  8  N.  W.  1 ;  Id., 
63  Wis.  323,  23  N.  W.  584. 

When  one  enters  upon  the  land  of  another  to  abate  a  nuisance,  he  must 
do  it  in  the  way  least  injurious  to  the  owner  of  the  land  entered.  Roberts 
v.  Rose,  4  H.  &  C.  103.  When  a  person  who  is  entitled  to  a  limited  right 
exercises  it  in  excess,  so  as  to  produce  a  nuisance,  it  may  be  abated  to  the 
extent  of  the  excess ;  but  if  the  nuisance  cannot  be  abated  without  obstruct- 
ing the  right  altogether,  the  exercise  of  the  right  may  be  entirely  stopped 
until  means  have  been  taken  to  reduce  it  within  its  proper  limits.  Crosland 
v.  Borough  of  Pottsville,  126  Pa.  511,  18  Atl.  15,  12  Am.  St.  Rep.  891.  "Thus, 
if  a  man  has  a  right  to  send  clean  water  through  my  drain,  and  chooses 
to  send  dirty  water,  every  particle  of  the  water  may  be  stopped,  because  it 
is  dirty."  Charles  v.  Finchley  Board,  L.  R.  23  Ch.  Div.  767,  775;  Beard 
v.  Murphy,  37  Vt  99,  86  Am.  Dec.  693.) 


INJURIES  BT   ANIMALS.  483 


INJURIES  BY  ANIMALS. 


(73  N.  Y.  195,  29  Am.  Rep.   123.) 

MULLER  v.  McKESSON  et  al.  (in  part). 

(Court  of  Appeals  of  New  York.    April  2,  1878.) 

1.  Vicious  ANIMATES— LIABILITY  FOB  INJURIES. 

A  person  keeping  a  mischievous  or  vicious  animal,  with  knowledge  of 
its  propensities,  is  bound  to  keep  it  secure  at  his  peril.  He  cannot  excuse 
himself  from  liability  for  injuries  inflicted  by  it  by  proof  of  due  care. 

2.  SAME— NEGLIGENCE  OF  Co- SERVANT. 

The  negligence  of  a  servant  in  loosing  his  master's  ferocious  dog  is 
no  defense  to  an  action  for  the  injury  caused  by  the  dog  to  a  fellow- 
servant,  as  the  gravamen  of  the  action  is  the  keeping  of  a  ferocious  ani- 
mal with  knowledge  of  its  nature,  and  not  the  negligent  care  of  it. 

3.  SAME — NEGLIGENCE  OF  PERSON  INJURED. 

If  a  person,  with  full  knowledge  of  the  evil  propensities  of  an  animal, 
wantonly  excites  it,  or  voluntarily  and  unnecessarily  puts  himself  in  the 
way  of  such  animal,  he  cannot  recover  for  the  injuries  thereby  sus- 
tained by  him,  but  the  owner  will  not  be  excused  by  slight  negligence  or 
want  of  ordinary  care  of  the  person  injured. 

4.  SAME. 

It  was  the  duty  of  plaintiff,  a  watchman  In  defendants'  employ  at  their 
factory,  to  open  the  gate  of  the  yard  every  morning  to  admit  the  work- 
men. In  such  yard  defendants  kept  a  ferocious  Siberian  blood-hound, 
which  was  usually  loosed  at  night  to  protect  the  premises,  and  chained 
during  the  day.  Defendants'  engineer  had  charge  of  the  dog,  and  it  was 
his  custom  to  notify  plaintiff  when  the  dog  was  loose.  Plaintiff,  while 
proceeding  across  the  yard  in  the  customary  manner  to  open  the  gate,  and 
having  no  knowledge  that  the  dog  was  loose,  was  attac'rod  by  it  and 
severely  injured.  Held,  that  plaintiff  was  not  bound  to  look  and  see 
that  the  dog  was  fastened  before  going  into  the  yard,  and  that  he  was 
entitled  to  recover  from  defendants  for  his  injuries. 

5.  MASTER  AND  SERVANT— RISK  OF  EMPLOYMENT. 

A  person  in  the  employ  of  another,  charged  with  specific  duties,  does 
not,  while  in  the  performance  of  such  duties,  assume  the  risk  of  injury 
from  a  vicious  animal  kept  by  the  employer,  which  he  is  informed  will  be 
kept  fastened. 

Appeal  from  Supreme  Court,  General  Term,  Second  Department. 

Action  by  August  Muller  against  John  McKesson  and  others  for 
damages  sustained  by  the  bite  of  a  savage  and  ferocious  dog  owned 
and  kept  by  defendants.  The  jury  found  a  verdict  for  plaintiff,  and 
judgment  was  entered  thereon,  and  was  affirmed  upon  appeal  to  the 
general  term.  10  Hun,  44.  From  the  judgment  of  the  general  term 
defendants  appealed. 


i84  LAW  OF  TORTS. 

CHURCH,  C.  J.  The  defendants  had  a  chemical  factory  in  Brook- 
lyn, and  owned  a  ferocious  dog  of  the  Siberian  blood-hound  species, 
which  was  kept  in  the  inclosed  yard  surrounding  the  factory,  and 
generally  kept  fastened  up  in  the  day-time  and  loosed  at  night  as  a  pro- 
tection against  thieves.  The  plaintiff  was  in  the  employ  of  the  de- 
fendants as  a  night  watchman.  It  was  his  duty  to  open  the  gate  to 
the  yard  every  morning  to  admit  the  workmen,  and  to  do  this  he 
would  pass  from  the  door  of  the  factory  across  a  corner  of  the  yard 
to  the  gate.  On  the  morning  in  question,  a's  the  plaintiff  was  return- 
ing from  opening  the  gate,  he  was  attacked  from  behind  by  the  dog, 
thrown  to  the  ground,  and  severely  bitten ;  and  after  freeing  himself, 
and  while  endeavoring  to  reach  the  factory,  was  again  attacked,  and 
bitten  and  seriously  injured. 

The  points  urged  by  the  appellants  in  this  case  are — First,  that 
the  plaintiff  was  guilty  of  contributory  negligence,  or  at  least  that 
the  evidence  would  have  warranted  the  jury  in  so  finding;  second, 
that  the  plaintiff  knew  the  vicious  habits  of  the  dog,  and  by  volun- 
tarily entering  upon  and  continuing  in  the  employment  of  the  de- 
fendants he  assumed  the  risk  of  such  accidents ;  third,  that  if  the  in- 
jury was  occasioned  by  the  negligence  of  the  engineer  in  not  prop- 
erly fastening  the  dog,  or  in  omitting  to  notify  the  plaintiff  that  he 
was  loose,  it  was  the  negligence  of  a  co-servant,  for  which  the  de- 
fendants are  not  liable. 

It  may  be  that,  in  a  certain  sense,  an  action  against  the  owner  for 
an  injury  by  a  vicious  dog  or  other  animal  is  based  upon  negligence ; 
but  such  negligence  consists,  not  in  the  manner  of  keeping  or  con- 
fining the  animal,  or  the  care  exercised  in  respect  to  confining  him, 
but  in  the  fact  that  he  is  ferocious,  and  that  the  owner  knows  it,  and 
proof  that  he  is  of  a  savage  and  ferocious  nature  is  equivalent  to  ex- 
press notice.  Earl  v.  Van  Alstine,  8  Barb.  630.  The  negligence  con- 
sists in  keeping  such  an  animal.  In  May  v.  Burdett,  9  Adol.  &  E. 
(N.  S.)  101,  Denman,  C.  J.,  said:  "But  the  conclusion  to  be  drawn 
from  an  examination  of  all  the  authorities  appears  to  us  to  be  this : 
that  a  person  keeping  a  mischievous  animal,  with  knowledge  of  its 
propensities,  is  bound  to  keep  it  secure,  at  his  peril,  and  that,  if  he 
does  mischief,  negligence  is  presumed."  When  accustomed  to  bite 
persons,  a  dog  is  a  public  nuisance,  and  may  be  killed  by  any  one  when 
found  running  at  large.  Putnam  v.  Payne,  13  Johns.  312;  Brown  v. 
Carpenter,  26  Vt.  638,  62  Am.  Dec.  603.  And,  when  known  to  the 
owner,  corresponding  obligations  are  imposed  upon  him.  Lord 
Hale  says:  "He  [the  owner]  must,  at  his  own  peril,  keep  him  safe 
from  doing  hurt,  for  though  he  use  his  diligence  to  keep  him  up, 
if  he  escape  and  do  harm,  the  owner  is  liable  in  damages."  In  Kelly 
v.  Tilton,  2  Abb.  Dec.  495,  Wright,  J.,  said :  "If  a  person  will  keep 
a  vicious  animal,  with  knowledge  of  its  propensities,  he  is  bound  to 
keep  it  secure  at  his  peril."  In  Wheeler  v.  Brant,  23  Barb.  324, 


INJURIES   BY   ANIMALS.  485 

Judge  Balcom  said:  "Defendant's  dog  was  a  nuisance,  and  so  are 
all  vicious  dogs,  and  their  owners  must  either  kill  them,  or  confine 
them  as  soon  as  they  know  their  dangerous  habits,  or  answer  in 
damages  for  their  injuries."  In  Card  v.  Case,  57  E.  C.  L.  622,  Colt- 
man,  J.,  said  "that  the  circumstances  of  the  defendants  keeping  the 
animal  negligently  is  not  essential ;  but  the  gravamen  is  the  keeping 
the  ferocious  animal,  knowing  its  propensities."  The  cases  are  uni- 
form in  this  doctrine,  although  expressed  in  a  variety  of  language  by 
different  judges.  Smith  v.  Pelah,  2  Strange,  1264;  Jones  v.  Perry, 
2  Esp.  482;  Greason  v.  Keteltas,  17  N.  Y.  496;  Woolf  v.  Chalker, 
31  Conn.  121,  81  Am.  Dec.  175;  Blackman  v.  Simmons,  3  Car.  & 
P.  138;  Rider  v.  White,  65  N.  Y.  54,  22  Am.  Rep.  600. 

In  some  of  the  cases  it  is  said  that  from  the  vicious  propensity,  and 
knowledge  of  the  owner,  negligence  will  be  presumed,  and  in  others 
that  the  owner  is  prima  facie  liable.  This  language  does  not  mean 
that  the  presumption  or  prima  facie  case  may  be  rebutted  by  proof 
of  any  amount  of  care  on  the  part  of  the  owner  in  keeping  or  re- 
straining the  animal,  and,  unless  he  can  be  relieved  by  some  act 
or  omission  on  the  part  of  the  person  injured,  his  liability  is  abso- 
lute. "This  presumption  of  negligence,  if  it  can  be  said  to  arise  at 
all,  so  as  to  be  in  any  way  material  in  a  case  where  the  owner  is  ab- 
solutely bound,  at  his  own  peril,  to  prevent  mischief,  is  a  presumptio 
juris  et  de  jure,  against  which  no  averment  or  proof  is  receivable. 
It  is  not  a  'presumption,'  in  the  ordinary  sense  of  the  word,  raising 
a  prima  facie  case  which  may  be  rebutted."  Card  v.  Case,  supra, 
p.  623,  note  b.  It  follows  that  the  doctrine  of  non-liability  arising 
from  the  negligence  of  a  co-servant  in  not  properly  fastening  the 
animal,  or  in  not  giving  notice  of  his  being  loose,  cannot  be  invoked, 
for  the  reason  that,  the  negligence  of  the  master  being  immaterial, 
that  of  his  servant  must  be  also. 

The  point  as  to  contributory  negligence  presents  the  most  diffi- 
culty. There  are  .expressions  in  some  of  the  cases  indicating  that  the 
liability  of  the  owner  is  not  affected  by  the  negligence  of  the  person 
injured.  In  Smith  v.  Pelah,  2  Strange,  1264,  the  owner  was  held 
liable,  although  the  injury  happened  by  reason  of  the  person  injured 
treading  on  the  dog's  toes,  the  chief  justice  saying:  "For  it  was 
owing  to  his  not  hanging  the  dog  on  the  first  notice."  It  is  not 
stated  that  the  person  injured  knew  of  the  dog's  propensities  or 
that  it  was  done  intentionally.  In  Woolf  v.  Chalker,  31  Conn.  130, 
81  Am.  Dec.  175,  it  is  said  that  the  owner  is  liable,  "irrespective  of 
any  question  of  negligence  of  the  plaintiff;"  and  citing  May  v.  Bur- 
dett  and  Card  v.  Case,  supra. 

In  May  v.  Burdett  the  chief  justice,  after  approving  of  the  ruling 
in  Smith  v.  Pelah,  2  Strange,  supra,  and  a  passage  from  Hale's  Pleas 
of  the  Crown,  (page  430,)  said :  "It  may  be  that  if  the  injury  was 
solely  occasioned  by  the  willfulness  of  the  plaintiff,  after  warning, 


486  LAW  OP  TORTS. 

that  may  be  a  ground  of  defense,  but  it  is  unnecessary  to  give  any 
opinion  as  to  this."  It  is  not  intimated,  as  before  stated,  in  Smith 
v.  Pelah,  that  the  treading  on  the  toes  of  the  dog  was  done  inten- 
tionally, or  with  knowledge  of  his  viciousness ;  and  I  do  not  think 
that  it  can  be  claimed  from  authority,  and  certainly  not  from  prin- 
ciple, that  no  act  of  the  person  injured  would  preclude  him  from 
recovering,  however  negligent  or  willful.  The  apparent  conflict 
on  this  point  arises,  I  think,  mainly  in  not  making  a  proper  applica- 
tion of  the  language  to  the  facts  of  the  particular  case.  If  a  per- 
son, with  full  knowledge  of  the  evil  propensities  of  an  animal,  wanton- 
ly excites  him,  or  voluntarily  and  unnecessarily  puts  himself  in  the 
way  of  such  an  animal,  he  would  be  adjudged  to  have  brought  the 
injury  upon  himself,  and  ought  not  to  be  entitled  to  recover.  In 
such  a  case  it  cannot  be  said,  in  a  legal  sense,  that  the  keeping  of  the 
animal,  which  is  the  gravamen  of  the  offense,  produced  the  injury. 
Coggswell  v.  Baldwin,  15  Vt.  404,  40  Am.  Dec.  686;  Koney  v.  Ward, 
36  How.  Prac.  255;  Wheeler  v.  Brant,  23  Barb.  324;  Blackman  v. 
Simmons,  3  Car.  &  P.  138;  Brock  v.  Copeland,  i  Esp.  203;  Bird  v. 
Holbrook,  4  Bing.  628. 

But  as  the  owner  is  held  to  a  rigorous  rule  of  liability  on  account 
of  the  danger  to  human  life  and  limb,  by  harboring  and  keeping  such 
animals,  it  follows  that  he  ought  not  to  be  relieved  from  it  by  slight 
negligence  or  want  of  ordinary  care.  To  enable  an  owner  of  such 
an  animal  to  interpose  this  defense,  acts  should  be  proved,  with  no- 
tice of  the  character  of  the  animal,  which  would  establish  that  the 
person  injured  voluntarily  brought  the  calamity  upon  himself.  Brock 
v.  Copeland,  i  Esp.  203,  cited  and'  relied  upon  by  the  counsel  for 
the  appellant,  is  in  some  of  its  features  like  this ;  and,  while  some  of 
the  language  of  Lord  Kenyon  is  not  in  harmony  with  that  used  in 
other  cases,  yet  from  the  facts  stated  it  is  fairly  inferable  that  the  fore- 
man voluntarily  went  into  the  yard  at  an  unusual  time,  and,  so  far 
as  appears,  without  business,  knowing  that  the  dog  was  loose,  and 
knowing  his  ferocious  nature. 

The  question,  then,  recurs  whether,  from  the  facts  appearing  in  this 
case,  the  jury  would  have  been  justified  in  finding  that  the  plaintiff 
was  guilty  of  that  kind  of  negligence  which  would  relieve  the  defend- 
ants ;  in  other  words,  could  they  have  found  that,  in  any  proper  sense, 
the  plaintiff  brought  the  injury  upon  himself?  He  was  in  discharge  of 
his  duty,  at  the  proper  time  and  in  the  right  place.  He  passed  from  the 
factory  to  the  gate  in  the  direct  path,  and  was  returning  when  he  was 
attacked  by  the  dog.  In  Blackman  v.  Simmons,  3  Car.  &  P.  138,  the 
injury  was  by  a  vicious  bull,  and  the  court  laid  stress  upon  the  circum- 
stance that  the  plaintiff  was  traveling  where  he  had  a  right-  to  go,  and 
said :  "If  the  plaintiff  had  gone  where  he  had  no  right  to  go,  that  might 
have  been  an  answer  to  the  action."  It  was  not  shown  that  the  plaintiff 
was  out  of  his  place ;  nor,  what  was  more  important  and  indispensable, 


INJURIES   BY   ANIMALS. 

was  it  shown  that  the  plaintiff  had  notice  that  the  dog  was  loose,  or 
that  he  had  reason  to  suppose  that  he  was  loose.  It  was  the  cus- 
tom of  Godfrey,  the  engineer,  to  loose  the  dog  at  night  and  fasten 
him  in  the  morning,  and  to  notify  the  plaintiff  when  the  dog  was 
loose.  No  such  notice  was  given.  The  plaintiff  testifies  positively 
that  he  did  not  know  or  suppose  the  dog  was  loose;  and  from  the 
evidence  of  Godfrey,  called  by  the  defendants,  it  is  inferable  that  the 
dog  had  not  been  loosed  for  several  days,  and,  if  it  had,  the  plaintiff 
had  a  right  to  suppose  that  Godfrey  had  fastened  him  that  morning. 
It  is  sufficient  to  say  that  the  evidence  did  not  show  that  the  plain- 
tiff had  notice  that  the  dog  was  loose,  nor  were  the  circumstance? 
such  as  to  induce  him  to  believe  that  such  was  the  fact.  If  the  negli- 
gence of  the  plaintiff  is  to  prevail,  it  must  be  predicated  upon  not 
taking  the  precaution  to  look,  examine,  and  ascertain  whether  the 
dog  was  fastened  or  not.  The  plaintiff  might  have  ascertained  by 
examination  whether  the  dog  was  fastened  in  his  kennel  or  not; 
but  I  do  not  think  that  he  was  bound  to  exercise  that  degree  of 
care,  or  that  the  defendant  can  be  relieved  from  liability  because  he 
did  not. 

It  does  not  appear  that  such  had  been  his  habit,  or  that  his  at- 
tention had  been  called  to  any  circumstance  to  call  for  unusual  pre- 
caution. The  evidence  must  have  been  sufficient  to  warrant  the  jury 
in  finding  actual  notice  that  the  dog  was  loose,  or,  at  least,  that  the 
plaintiff  had  reason  to  so  believe.  This  rule  is  quite  as  liberal  as 
ought  to  be  adopted  in  favor  of  a  person  who  keeps  an  animal  of 
such  savage  ferocity  as  this  was  found  to  be.  Ilott  v.  Wilkes,  3 
Barn.  &  Aid.  308,  and  Bird  v.  Holbrook,  4  Bing.  628,  were  both 
cases  of  spring  guns.  In  the  former  the  person  injured  had  notice, 
and  in  the  latter,  though  a  trespasser,  he  had  not;  and  the  action  was 
held  maintainable  in  the  latter,  and  not  in  the  former.  In  the  former 
case  Holroyd,  J.,  expresses  the  principle  of  non-liability,  when  notice 
has  been  given,  to  be  that  the  act  which  produced  the  injury  to  the 
plaintiff  "must  be  considered  wholly  as  his  act,  and  not  the  act  of 
the  person  who  placed  the  gun  there." 

As  "negligence,"  in  the  ordinary  sense,  is  not  the  ground  of  lia- 
bility, so  contributory  negligence,  in  its  ordinary  meaning,  is  not 
a  defense.  These  terms  are  not  used  in  a  strictly  legal  sense  in  this 
class  of  actions,  but  for  convenience.  There  is  considerable  reason 
in  favor  of  the  doctrine  of  absolute  liability  for  injuries  produced  by 
a  savage  dog,  whose  propensities  are  known  to  the  owner,  on  the 
ground  of  its  being  in  the  interest  of  humanity,  and  out  of  regard 
to  the  sanctity  of  human  life;  but  as  these  animals  have  different 
degrees  of  ferocity,  and  the  rule  must  be  a  general  one,  I  think,  in 
view  of  all  the  authorities,  that  the  rule  of  liability  before  indicated 
is  a  reasonable  one,  and  that  the  owner  cannot  be  relieved  from  it 
by  any  act  of  the  person  injured,  unless  it  be  one  from  which  it  can 


488  LAW  OF  TORTS. 

be  affirmed  that  he  caused  the  injury  himself,  with  a  full  knowledge 
of  its  probable  consequences. 

The  evidence  in  this  case  falls  far  short  of  warranting  a  verdict 
that  the  plaintiff  had  committed  any  such  act.  As  before  stated, 
he  had  no  notice  that  the  dog  was  loose,  but  had  every  reason  to 
suppose  that  he  was  fastened,  and  did  in  fact  suppose  so.  He  was 
in  the  discharge  of  his  duty,  and  was  not  called  upon  to  institute  an 
inquiry  whether  the  dog  had  broken  his  fastenings,  or  that  Godfrey 
had  been  negligent  in  not  giving  him  notice  that  the  dog  was  loose. 

The  remaining  point,  that  the  plaintiff  assumed  the  risk  of  such 
accidents,  is  not  tenable.  The  rule  is  that  a  servant  assumes  the 
ordinary  risks  incident  to  the  business  in  which  he  engages.  What 
were  the  risks  of  his  employment  here,  as  it  respects  the  dog?  He 
was  informed,  it  is  true,  of  the  nature  of  the  animal,  but  he  was  also 
told  that  the  dog  would  be  kept  fastened,  and  the  uniform  habit  was 
to  notify  him  when  the  dog  was  loose.  By  the  terms  of  his  employ- 
ment, and  the  conduct  of  those  who  represented  the  defendants,  the 
most  that  can  be  said  is  that  he  assumed  the  risks  consequent  upon 
the  keeping  of  a  ferocious  dog,  which  was  kept  fastened  except  when 
he  was  otherwise  notified.  Beyond  this  the  plaintiff  is  entitled  to 
the  same  protection  as  other  persons.  This  is  not  a  case  for  relax- 
ing the  rule  of  liability.  The  tfog  was  of  immense  size,  and  a  brute 
as  savage  as  a  tiger  or  a  lion,  and  should  be  more  properly  classed 
with  such  wild  beasts  than  with  the  domestic  dog,  which,  although 
useless,  is  generally  comparatively  harmless.  He  had  no  respect  for 
persons.  In  the  language  of  the  person  who  sold  him  to  defendants, 
"he  bit  everybody."  There  is  no  legal  excuse  for  exposing  human 
life  to  the  ferocity  of  such  an  animal.  The  judgment  must  be  af- 
firmed. All  concur,  except  RAPALLO,  J.,  absent. 

Judgment  affirmed. 

(See  also  May  v.  Burdett,  9  Q.  B.  101 ;  Filburn  v.  People's  Palace,  etc.,  Co., 
25  Q.  B.  Div.  258 ;  Lynch  v.  McNally,  73  N.  Y.  347 ;  Perkins  v.  Mossman,  44 
N.  J.  Law,  579;  Spring  Co.  v.  Edgar,  99  U.  S.  645,  25  L.  Ed.  487  [injury  by 
stag  kept  in  park  at  Saratoga  by  the  Congress  Spring  Company  to  child  walk- 
ing in  the  park ;  Spring  Company  held  liable] ;  Godeau  v.  Blood,  52  Vt.  251, 
36  Am.  Rep.  751 ;  Twigg  v.  Ryland,  62  Md.  380,  50  Am.  Rep.  226 ;  Laherty  v. 
Hogan,  13  Daly,  533 ;  Woolf  v.  Chalker,  31  Conn.  127,  81  Am.  Dec.  175.) 


TRESPASS  TO   PERSONAL  PROPERTY.  489 


TRESPASS  TO  PERSONAL  PROPERTY. 


I.  WHAT  CONSTITUTES  A  TRESPASS. 

(37  Ala.  430.) 

WHITE   v.   BRANTLEY. 

(Supreme  Court  of  Alabama.     January  Term,  1861.) 

TRESPASS  TO  PERSONAL  PROPERTY — WHEN  BAILOR  MAY  SUE. 

An  action  of  trespass  lies  by  the  owner  of  a  dog  for  destroying  it, 
though  the  dog  is  not  at  the  time  in  his  actual  possession,  but  loaned  to 
another.  In  this  form  of  bailment  the  general  property  draws  to  it  the 
possession. 

Appeal  from  Circuit  Court,  Dallas  County. 

Action  of  trespass  by  White  against  Brantley  for  killing  plaintiff's 
dog.  Defendant  pleaded  that  the  dog,  at  the  time  of  the  alleged 
killing,  was  not  in  plaintiff's  possession.  Plaintiff  replied  that  the 
dog  was  in  the  possession  of  a  certain  third  person  under  a  loan 
from  plaintiff.  Judgment  was  given  for  defendant  upon  the  plead- 
ings, which  plaintiff  assigned  as  error. 

WALKER,  C.  J.  Dogs  are  animals  domitae  naturae,  and  although 
they  may  not  be,  in  the  estimation  of  the  common  law,  of  such  value 
as  that  the  stealing  of  them  amounts  to  larceny,  yet  an  action  at  law 
lies  for  destroying  them.  There  is  no  distinction  between  them  and 
other  chattels,  as  to  the  possession  necessary  to  the  maintenance 
of  an  action  of  trespass.  There  is  a  distinction  as  to  animals  ferae 
naturae;  but  dogs  are  not  animals  ferae  naturae.  4  Bl.  Comm.  236; 
Ireland  v.  Higgins,  Cro.  Eliz.  125 ;  Wright  v.  Ramscot,  I  Saund.  85  ; 
Case  of  Swans,  7  Coke,  18 ;  Parker  v.  Mise,  27  Ala.  480,  62  Am.  Dec. 
776.  It  follows  that,  to  the  maintenance  of  this  action,  it  was  not 
requisite  that  the  plaintiff  should  have  had  actual  possession  of  the 
dog.  If  he  was  the  owner  of  the  dog,  and  the  dog  was  loaned  out  at 
the  time,  the  general  property,  "prima  facie,  as  to  all  civil  purposes, 
draws  to  it  the  possession." 

Reversed  and  remanded. 

(In  cases  of  what  are  called  "simple  bailment,"  1.  e.,  where  the  bailor  has  a 
right  to  restoration  of  possession  whenever  he  demands  it  from  the  bailee,  as 
in  cases  of  depositum.  mandatum,  commodatum,  etc.,  the  bailor  is  said  to  have 
"constructive  possession,"  the  bailee  "actual  possession,"  and  either  can 
maintain  trespass  against  a  third  person  who  wrongfully  takes  the  chattel 
from  the  bailee,  or  destroys  it  Cooley  on  Torts  [2d  Ed.]  512.) 


490  LAW  OF  TORTS. 

(12  Me.  67,  28  Am.  Dec.  159.) 

HOBART  v.  HAGGET  (in  part.) 

(Supreme  Judicial  Court  of  Maine.     April  Term,  1835.) 

TRESPASS  TO  PERSONAL  PROPERTY— INTENT— MISTAKE. 

A  mistake  will  not  excuse  a  trespass,  nor  is  the  intent  material. 
Where  there  is  a  mistake  between  the  seller  and  purchaser  as  to  the 
article  sold,  the  seller  supposing  he  has  sold  one  article  while  the 
purchaser  supposes  he  has  bought  another,  of  which  he  takes  possession, 
he  will  be  liable  in  trespass. 

Exceptions  from  Court  of  Common  Pleas. 

Action  of  trespass  for  taking  and  converting  an  ox,  the  property 
of  plaintiff.  It  appeared  at  the  trial  that  plaintiff  sold  defendant 
an  ox,  and  told  him  to  go  to  his  place  and  take  it,  and  that  defend- 
ant went  and  took  out  of  plaintiff's  field  an  ox  which  he  supposed 
was  the  one  he  purchased.  Plaintiff  claimed  and  testified  that  such 
ox  was  not  the  one  he  intended  to  sell,  or  supposed  defendant  con- 
sidered himself  as  buying.  The  court  instructed  the  jury  that  if 
they  were  satisfied  that  there  had  been  an 'innocent  mistake  between 
the  parties,  and  that  defendant  had  supposed  he  had  purchased  the 
ox  in  question  when  in  fact  plaintiff  supposed  he  was  not  selling  that 
ox,  but  another,  they  would  find  for  plaintiff,  to  which  defendant 
excepted.  The  verdict  was  for  plaintiff  for  the  value  of  the  ox 
taken.  Defendant  alleged  exceptions. 

PARRIS,  J.  The  ox  taken  by  defendant  was  the  property  of  the 
plaintiff,  and  although  the  defendant  attempted  to  prove  that  he 
purchased  that  ox,  and  consequently  had  a  right  to  take  it,  the  at- 
tempt wholly  failed.  He  may  have  considered  himself  as  the  pur- 
chaser, but,  unless  the  plaintiff  assented  to  it,  no  property  passed. 
The  assent  of  both  minds  was  necessary  to  make  the  contract.  The 
court  below  charged  the  jury  that  if  they  were  satisfied  there  had 
been  an  innocent  mistake  between  the  parties,  and  that  the  defend- 
ant had  supposed  he  had  purchased  the  ox  in  question  'when  in  fact 
the  plaintiff  supposed  he  was  not  selling  that  ox,  but  another,  that 
they  would  find  for  the  plaintiff.  The  jury,  having  found  for  the 
plaintiff,  have  virtually  found  that  he  did  not  sell  the  ox  in  contro- 
versy, and  the  question  is  raised  whether  the  defendant  is  liable  in 
trespass  for  having  taken  it  by  mistake.  It  is  contended  that,  where 
the  act  complained  of  is  involuntary  and  without  fault,  trespass  will 
not  lie,  and  sundry  authorities  have  been  referred  to  in  support  of 
that  position. 

But  the  act  complained  of  in  this  case  was  not  involuntary.  The 
taking  the  plaintiff's  ox  was  the  deliberate  and  voluntary  act  of  the 
defendant.  He  might  not  have  intended  to  commit  a  trespass  in  so 


TRESPASS   TO    PERSONAL   PROPERTY.  491 

doing.  Neither  does  the  officer,  when  on  a  precept  against  A  he 
takes  by  mistake  the  property  of  B,  intend  to  commit  a  trespass; 
nor  does  he  intend  to  become  a  trespasser  who,  believing  that  he  is 
cutting  timber  on  his  own  land,  by  mistaking  the  line  of  division  cuts 
on  his  neighbor's  land;  and  yet,  in  both  cases,  the  law  would  hold 
them  as  trespassers.  The  case  of  Higginson  v.  York,  5  Mass.  341, 
was  still  stronger  than  either  of  those  above  supposed.  In  that 
case,  one  Kenniston  hired  the  defendant  to  take  a  cargo  of  wood 
from  Burntcoat  island  to  Boston.  Kenniston  went  with  the  defend- 
ant to  the  island,  where  the  latter  took  the  wood  on  board  his  ves- 
sel, and  transported  it  to  Boston,  and  accounted  for  it  to  Kenniston. 
It  turned  out  on  trial  that  one  Phinney  had  cut  this  wood  on  the 
plaintiff's  land  without  right  or  authority,  and  sold  it  to  Kenniston. 
York,  the  defendant,  was  held  liable  to  the  plaintiff  for  the  value  of 
the  wood  in  an  action  of  trespass,  although  it  was  argued  that  he 
was  ignorant  of  the  original  trespass  committed  by  Phinney.  A  mis- 
take will  not  excuse  a  trespass.  Though  the  injury  has  proceeded 
from  mistake,  the  action  lies,  for  there  is  some  fault  from  the  neglect 
and  want  of  proper  care,  and  it  must  have  been  done  voluntarily. 
Basely  v.  Clarkson,  3  Lev.  37.  Nor  is  the  intent  or  design  of  the 
wrong-doer  the  criterion  as  to  the  form  of  remedy,  for  there  are 
many  cases  in  the  books  where,  the  injury  being  direct  and  immedi- 
ate, trespass  has  been  holden  to  lie,  though  the  injury  were  not  in- 
tentional, as  in  Guille  v.  Swan,  19  Johns.  381,  10  Am.  Dec.  234,  where 
the  defendant  ascended  in  a  balloon,  which  descended  into  the  plain- 
tiff's garden;  and  the  defendant,  being  entangled  and  in  a  perilous 
situation,  called  for  help,  and  a  crowd  of  people  broke  though  the 
fences  into  the  plaintiff's  garden,  and  beat  and  trod  down  his  veg- 
etables, the  defendant  was  held  answerable  in  trespass  for  all  the 
damages  done  to  the  garden.  In  this  case  Spencer,  C.  J.,  said  :  "The 
intent  with  which  an  act  is  done  is  by  no  means  the  test  of  the  lia- 
bility of  a  party  to  an  action  of  trespass.  If  the  act  cause  the  im- 
mediate injury,  whether  it  was  intentional  or  unintentional,  trespass 
is  the  proper  action  to  redress  the  wrong."  See,  also,  I  Poth.  art. 
i,  §  i ;  i  Sum.  219,  307. 

The  exceptions  are  overruled,  and  there  must  be 

Judgment  on  the  verdict. 


492  kAW  OP  TORTS. 

(6  Wls.  320.) 

DEXTER  v.  COLE. 

(Supreme  Court  of  Wisconsin.    January  Term,  1858.) 

L  TBESPASS  TO  PERSONAL  PEOPEBTT— INTENT— MISTAKE. 

To  maintain  trespass  de  bonis  asportatis,  actual  forcible  dispossession 
of  property  is  not  necessary ;  any  unlawful  interference  with  or  exercise 
of  acts  of  ownership  over  property,  to  the  exclusion  of  the  owner,  will 
constitute  trespass,  though  there  was  no  wrongful  intent,  and  the  prop- 
erty was  taken  accidentally  or  by  mistake. 

2.  SAME. 

Plaintiff's  sheep,  running  at  large  in  the  highway,  became  mixed  with 
sheep  which  defendant  was  driving  to  market.  Defendant  separated  all 
but  four  of  them,  which  he  drove  to  market  with  his  flock.  Held,  that 
he  was  liable  in  trespass. 

Error  to   Circuit   Court,   Milwaukee   County. 

Action  of  trespass  by  D.  H.  Dexter  against  James  Cole  for  tak- 
ing and  driving  away  22  sheep,  the  property  of  plaintiff.  On  the 
trial  before  a  justice  of  the  peace  and  a  jury,  it  appeared  that  plain- 
tiff's sheep,  running  at  large  in  the  highway,  became  mixed  with  a 
larger  flock  which  defendant  was  driving  to  market ;  whereupon  de- 
fendant drove  the  whole  flock  into  a  yard  to  separate  them,  and 
threw  out  a  number  which  he  did  not  claim,  and  drove  the  rest  to 
market  and  slaughtered  them.  The  evidence  tended  to  show  (and 
it  appeared  from  the  verdict  that  the  jury  so  found)  that  four  of 
plaintiff's  sheep  remained  in  the  flock,  and  were  slaughtered  with 
the  rest.  The  judgment  for  plaintiff  was  reversed  upon  certiorari. 
Plaintiff  sued  out  a  writ  of  error. 

COLE,  J.  We  have  no  doubt  but  that  the  action  of  trespass  would 
lie  in  this  case.  In  driving  off  the  sheep  the  defendant  in  error, 
without  doubt,  unlawfully  interfered  with  the  property  of  Dexter; 
and  it  has  been  frequently  decided  that,  to  maintain  trespass  de 
bonis  asportatis,  it  was  not  necessary  to  prove  actual,  forcible  dis- 
possession of  property;  but  that  evidence  of  any  unlawful  interfer- 
ence with,  or  exercise  of  acts  of  ownership  over,  property,  to  the 
exclusion  of  the  owner,  would  sustain  the  action.  Gibbs  v.  Chase, 
10  Mass.  128;  Miller  v.  Baker,  i  Mete.  (Mass.)  27;  Phillips  v.  Hall, 
8  Wend.  610,  24  Am.  Dec.  108;  Morgan  v.  Varick,  8  Wend.  587; 
Wintringham  v.  Lafoy,  7  Cow.  735 ;  Reynolds  v.  Shuler,  5  Cow.  325 ; 
i  Chitty,  PL  (nth  Amer.  Ed.)  170,  and  cases  cited  in  the  notes. 
Neither  is  it  necessary  to  prove  that  the  act  was  done  with  a  wrong- 
ful intent,  it  being  sufficient  if  it  was  without  a  justifiable  cause  or 
purpose,  though  it  were  done  accidentally  or  by  mistake.  2  Greenl. 
Ev,  §  622 ;  Guille  v.  Swan,  19  Johns.  381,  10  Am.  Dec.  234.  There 
«  nothing  inconsistent  with  these  authorities  in  the  case  of  Parker 


TRESPASS  TO  PERSONAL  PROPERTY.  4.93 

v.  Walrod,  13  Wend.  296,  cited  upon  the  brief  of  the  counsel  for  the 
defendant  in  error. 

Upon  the  other  point  in  the  case  we  think  there  was  some  evidence 
to  support  the  verdict  of  the  jury,  and  therefore  the  judgment  of  the 
justice  should  not  be  reversed  because  the  proof  was  insufficient. 
It  was  the  province  of  the  jury  to  weigh  the  evidence,  and  determine 
what  facts  were  established  by  it;  and  the  county  court  ought  not 
to  reverse  the  judgment,  because  the  proof  was  not  sufficient  in  its 
opinion  to  justify  the  finding  of  the  jury. 

The  judgment  of  the  county  court  is  therefore  reversed,  and  the 
judgment  of  the  justice  affirmed. 

(See  also  Ely  v.  Ehle,  3  N.  Y.  507 ;  Haythorn  v.  Rushforth,  19  N.  J.  Law, 
160,  38  Am.  Dec.  540 ;  Kirk  v.  Gregory,  1  Exch.  Div.  55 ;  Fouldes  v.  Willough- 
by,  8  Mees.  &  W.  540;  Oilman  v.  Emery,  54  Me.  400;  Bruch  v.  Carter,  32 
N.  J.  Law,  554;  Burgess  v.  Graffam  [C.  C.]  18  Fed.  251;  Welsh  v.  Bell,  32 
Pa.  12;  Stanley  v.  Gaylord,  1  Cush.  536,  48  Am.  Dec.  643.  Untying  and  re- 
moving a  horse  from  a  hitching  post  where  its  owner  had  a  right  to  tie  it 
has  been  held  a  trespass.  Bruch  v.  Carter.  32  N.  J.  Law,  554.) 


(12  Wend.  39.) 

WALL  et  al.  v.  OSBORN. 

(Supreme  Court  of  New  York.    May,  1834.) 

TBESPASS—  SALE  OF  ANOTHEB'S  PROPERTY — REMOVAL. 

Where  a  party  sold  a  mill  standing  upon  the  lot  of  his  neighbor,  and 
appointed  a  day  for  the  purchaser  to  take  it  away,  promising  to  aid 
him  in  its  removal  if  assistance  was  necessary,  and  the  mill  was  subse- 
quently taken  down  and  removed  by  the  purchaser ;  it  was  held  that 
the  vendor  was  liable  in  an  action  of  trespass,  although  there  was  uo 
proof  of  his  being  present,  or  aiding  in  the  removal  of  the  building. 

Error  from  the  superior  court  of  the  city  of  New  York.  The 
Messrs.  Wall  sued  Osborn  in  trespass  for  taking  down  and  carrying  off 
a  mill  erected  upon  plaintiffs'  lot  of  land.  Osborn  was  in  possession 
of  a  lot  adjoining  that  of  the  plaintiffs,  whose  mill  projected  a  few 
inches  upon  the  lot  of  the  defendant.  The  defendant  sold  the  mill 
to  one  Carman,  and  told  him  that  if  he  would  send  his  men  to  take 
down  the  mill,  at  a  specified  time,  he  would  have  a  man  to  assist  him 
if  he  wanted  help.  The  mill  was  subsequently  taken  down  by  Carman, 
but  whether  Osborn  was  present  or  furnished  any  assistance  was  not 
clearly  shown.  The  chief  justice  of  the  superior  court  instructed  the 
jury  that  the  sale  of  the  mill  to  Carman,  and  the  appointment  of  a  time 
for  him  to  take  possession  of  it,  was  not  such  a  participation  in  the  act 
of  removal  as  to  make  the  defendant  a  trespasser.  The  jury  found  for 
the  defendant,  and  the  plaintiffs,  having  excepted  to  the  charge  of  the 
judge,  sued  out  a  writ  of  error. 


LAW  OF  TORTS. 

SAVAGE,  C.  J.  In  Guille  v.  Swan,  19  Johns.  382,  10  Am.  Dec. 
234,  Ch.  J.  Spencer  says :  "To  render  one  man  liable  in  trespass  for  the 
acts  of  others,  it  must  appear  either  that  they  acted  in  concert,  or  that 
the  act  of  the  individual  sought  to  be  charged  ordinarily  and  naturally 
produced  the  acts  of  the  others."  In  Scott  v.  Shepherd,  2  Black.  R. 
892,  Chief  Justice  De  Grey  laid  it  down  as  a  correct  principle  that  one 
who  does  an  unlawful  act  is  considered  as  the  doer  of  all  that  follows. 
In  the  language  of  Lord  Ellenborough,  in  Leame  v.  Bray,  3  East, 
595,  he  is  the  causa  causans — the  prime  mover  of  the  damage  to  the 
plaintiff.  By  the  act  of  selling  the  plaintiffs'  property  the  defendant 
assumed  a  control  over  it,  and  by  appointing  the  time  for  the  re- 
moval of  the  mill  he  virtually  directed  the  purchaser  to  take  it  away. 
In  the  case  of  Morgan  v.  Varick,  8  Wend.  594,  the  defendant  sold 
the  plaintiff's  steam  engine,  and  requested  the  purchaser  to  take  it 
away;  and  he  was  held  liable  in  trespass.  The  principle  has  been 
frequently  recognized  in  this  court  that  any  unlawful  interference 
with  or  assertion  of  control  over  the  property  of  another  is  sufficient 
to  subject  the  party  to  an  action  of  trespass  or  trover.  Phillips  v. 
Hall,  8  Wend.  613,  24  Am.  Dec.  108;  Wintering-ham  v.  Lafoy,  7 
Cow.  735;  see  also  Gibbs  v.  Chase,  10  Mass.  125.  If  the  law  were 
otherwise,  great  injury  might  ensue  without  remedy  to  the  aggrieved 
party*  The  defendant  in  this  case,  by  undertaking  to  sell  the  plain- 
tiffs' property,  was  the  moving  cause  of  the  injury  sustained  by  the 
plaintiffs.  On  the  supposition  that  the  purchaser  is  perfectly  respon- 
sible, the  plaintiffs  have  been  put  to  trouble  and  expense  for  which 
the  defendant  should  be  liable.  If  the  law  were  otherwise,  and  if 
in  such  case  a  purchaser  was  irresponsible,  the  owner  might  lose  his 
property  altogether. 

The  judgment  below  must  be  reversed,  with  costs ;  venire  de  novo 
to  issue  in  this  court. 


II.  IS  AN  INJURY  TO  THE  RIGHT  OF  POSSESSION. 

(13  Me.  236.) 

LUNT  et  al.  v.  BROWN. 
(Supreme  Judicial  Court  of  Maine.     May  Term,  1836.) 

1.  TRESPASS  TO  PERSONAL  PROPERTY— POSSESSION  OR  RIGHT  TO  POSSESSION. 

A  person  cannot  maintain  trespass  for  taking  personal  property,  unless 
at  the  time  of  the  taking  he  had  either  actual  or  constructive  possession, 
or  a  right  to  the  immediate  possession. 

2.  SAME. 

Where  personal  property  is  left  in  the  possession  of  another  under  an 
agreement  for  a  specified  time,  the  owner  cannot  maintain  trespass 
against  a  third  person  for  taking  such  property  during  such  time. 


TRESPASS  TO   PERSONAL  PROPERTY.  495 

Exceptions  from  Court  of  Common  Pleas. 

Action  of  trespass  by  Johnson  Lunt  and  S.  Lunt  against  Royal 
Brown  for  taking  plaintiffs'  mare.  Plaintiffs  had  purchased  the  mare 
of  one  Winn,  and  had  agreed  that  Winn  should  keep  her  "until  graz- 
ing time ;"  and  while  she  was  in  Winn's  possession  under  such  agree- 
ment she  was  taken  by  defendant,  a  deputy-sheriff,  under  an  ex- 
ecution against  Winn.  The  court  instructed  the  jury  that  on  such 
facts  plaintiffs  could  not  recover,  and  the  verdict  was  for  defendant. 
Plaintiffs  alleged  exceptions. 

WESTON,  C.  J.  Regarding  the  right  of  property  in  the  mare  in 
controversy  to  have  been  in  the  plaintiffs,  with  a  right  of  pre-emp- 
tion only  in  Winn,  as  whose  property  she  was  taken  by  the  defendant, 
the  officer,  the  case  finds  that,  by  the  agreement  between  the  plain- 
tiffs and  Winn,  the  latter  was  to  keep  her  until  grazing  time.  She 
was  taken  by  the  officer  in  March,  before  the  time  of  grazing.  And 
this  is  the  only  proof  of  trespass  upon  which  the  plaintiffs  rely  to 
maintain  their  action.  Trespass  is  a  remedy  afforded  by  law  for  an 
injury  done  to  the  plaintiffs'  possession.  They  must  show  posses- 
sion, actual  or  constructive,  or  an  immediate  right  of  possession. 

In  Ward  v.  Macauley,  4  Term  R.  480,  the  plaintiff  had  let  to  Lord 
Montfort  a  ready  furnished  house,  and  the  lease  contained  a  schedule 
of  the  furniture.  Pending  the  lease,  the  defendants,  sheriffs  of  Mid- 
dlesex, seized  part  of  the  furniture  on  execution  against  Lord  Mont- 
fort.  Trespass  was  held  not  to  lie  against  the  defendants,  because 
the  plaintiff  had  neither  possession  nor  a  right  of  possession  at  the 
time.  The  same  doctrine  was  recognized  in  Putnam  v.  Wyley,  8 
Johns.  432,  5  Am.  Dec.  346,  and  in  Clark  v.  Carlton,  I  N.  H.  no. 

As  the  plaintiffs  had  neither  possession  nor  the  right  of  possession 
at  the  time  of  the  alleged  trespass,  we  are  satisfied,  on  this  ground, 
that  the  judge  below  was  warranted  in  instructing  the  jury  that  the 
action  was  not  maintained.  We  accordingly  overrule  the  exceptions 
taken  by  the  counsel  for  the  plaintiffs.  It  has  become  unnecessary, 
therefore,  to  consider  those  taken  for  the  defendant,  as,  if  they  are 
overruled,  the  plaintiffs  cannot  prevail. 

Judgment  for  defendant. 

(See  also  Billingsley  v.  White,  59  Pa.  469;  Wheeler  v.  Lawson,  103  N.  T. 
40,  8  N.  E.  360 ;  Muggridge  v.  Eveleth,  9  Mete.  [Mass.]  233 ;  Dufour  v.  Ander 
son,  95  Ind.  302;  Staples  v.  Smith,  48  Me.  470.) 


496  LAW  OF  TOUTS. 


CONVERSION  OF  PERSONAL  PROPERTY. 


I.  WHAT  CONSTITUTES  CONVERSION. 

(68  N.  Y.  522,  23  Am.  Rep.  184.) 

LAVERTY  v.  SNETHEN  (In  part). 

(Court  of  Appeals  of  New  York.     February  20,  1877.) 

L  CONVERSION— DISPOSAL  BY  AGENT  OF  PROPEBTY  OF  PRINCIPAL. 

Where  an  agent  parts  with  the  property  of  his  principal  In  a  way  or 
for  a  purpose  not  authorized,  he  is  liable  for  a  conversion;  but  if  he  parts 
with  it  in  accordance  with  his  authority,  although  at  a  less  price,  or  if  he 
misapplies  the  avails,  or  takes  inadequate  for  sufficient  security,  he  is  not 
liable  for  a  conversion. 

2.  SAME. 

Plaintiff,  holding  a  promissory  note  payable  to  his  order,  indorsed  the 
same,  and  delivered  It  to  defendant  to  negotiate  for  him,  with  instruc- 
tions not  to  let  the  note  go  out  of  his  hands  without  receiving  the  money 
for  it;  and  defendant  gave  a  receipt  stating  that  the  note  was  received 
for  negotiation,  and  was  to  be  returned  the  next  day,  or  the  avails  thereof. 
Defendant  delivered  the  note  to  a  third  person,  who  promised  to  nego- 
tiate it,  and  return  the  proceeds.  The  latter,  after  negotiating  the  note, 
appropriated  the  proceeds.  Held,  that  the  act  of  defendant  was  an  un- 
lawful interference  with  the  note,  and  amounted  to  a  conversion  thereof. 

Appeal  from  Court  of  Common  Pleas  of  the  City  and  County  of 
New  York,  General  Term. 

Action  by  William  K.  Laverty  against  Worthington  G.  Snethen 
for  the  conversion  of  a  promissory  note,  the  property  of  plaintiff, 
made  by  one  Holly,  payable  to  plaintiff's  order.  The  action  was 
brought  in  the  marine  court  of  the  city  of  New  York.  Plaintiff  ob- 
tained a  verdict,  and  the  judgment  entered  thereon  was  affirmed  on 
appeal  by  the  general  term  of  the  marine  court,  and,  on  a  further  ap- 
peal, by  the  general  term  of  the  court  of  common  pleas.  From  the 
judgment  of  the  common  pleas,  defendant  appealed. 

CHURCH,  C.  J.  The  defendant  received  a  promissory  note  from 
the  plaintiff,  made  by  a  third  person,  and  indorsed  by  the  plaintiff, 
and  gave  a  receipt  therefor,  stating  that  it  was  received  for  negotia- 
tion, and  the  note  to  be  returned  the  next  day,  or  the  avails  thereof. 
The  plaintiff  testified,  in  substance,  that  he  told  the  defendant  not  to  let 
the  note  go  out  of  his  reach  without  receiving  the  money.  The  de- 
fendant, after  negotiating  with  one  Foote  about  buying  the  note,  de- 
livered the  note  to  him  under  the  promise  that  he  would  get  it  dis- 
counted, and  return  the  money  to  defendant,  and  he  took  away  the 


CONVERSION  OF  PERSONAL  PROPERTY.  497 

note  for  that  purpose.      Foot  did  procure  the  note  to  be  discount- 
ed, but  appropriated  the  avails  to  his  own  use. 

The  court  charged  that,  if  the  jury  believed  the  evidence  of  the 
plaintiff  in  respect  to  instructing  the  defendant  not  to  part  with  the 
possession  of  the  note,  the  act  of  defendant  in  delivering  the  note 
and  allowing  Foote  to  take  it  away,  was  a  conversion  in  law,  and  the 
plaintiff  was  entitled  to  recover.  The  question  as  to  when  an  agent 
is  liable  in  trover  for  conversion  is  sometimes  difficult.  The  more 
usual  liability  of  an  agent  to  the  principal  is  an  action  of  assumpsit, 
or  what  was  formerly  termed  an  action  on  the  case  for  neglect  or  mis- 
conduct, but  there  are  cases  when  trover  is  the  proper  remedy.  Con- 
version is  defined  to  be  an  unauthorized  assumption  and  exercise  of 
the  right  of  ownership  over  goods  belonging  to  another,  to  the  ex- 
clusion of  the  owner's  rights.  A  constructive  conversion  takes  place 
when  a  person  does  such  acts  in  reference  to  the  goods  of  another  as 
amount  in  law  to  appropriation  of  the  property  to  himself.  Every 
unauthorized  taking  of  personal  property,  and  all  intermeddling  with 
it,  beyond  the  extent  of  the  authority  conferred,  in  case  a  limited  au- 
thority has  been  given,  with  intent  so  to  apply  and  dispose  of  it  as 
to  alter  its  condition  or  interfere  with  the  owner's  dominion,  is  a 
conversion.  Bouv.  Law  Diet.  tit.  "Conversion."  Savage,  C.  J.,  in 
Spencer  v.  Blackman,  9  Wend.  167,  defines  it  concisely  as  follows : 
"A  conversion  seems  to  consist  in  any  tortious  act  by  which  the  de- 
fendant deprives  the  plaintiff  of  his  goods."  In  this  case  the  plain- 
tiff placed  the  note  in  the  hands  of  the  defendant  for  a  special  purpose 
not  only,  but  with  restricted  authority  (as  we  must  assume  from  the 
verdict  of  the  jury)  not  to  part  with  the  possession  of  the  note  with- 
out receiving  the  money.  The  delivery  to  Foote  was  unauthorized 
and  wrongful,  because  contrary  to  the  express  directions  of  the  owner. 
The  plaintiff  was  entitled  to  the  absolute  dominion  over  this  property 
as  owner.  He  had  a  right  to  part  with  so  much  of  that  dominion  as 
he  pleased.  He  did  part  with  so  much  of  it  as  would  justify  the  de- 
fendant in  delivering  it  for  the  money  in  hand,  but  not  otherwise. 
The  act  of  permitting  the  note  to  go  out  of  his  possession  and  be- 
yond his  reach  was  an  act  which  he  had  no  legal  right  to  do.  It  was 
an  unlawful  interference  with  the  plaintiff's  property,  which  resulted 
in  loss,  and  that  interference  and  disposition  constituted,  within  the 
general  principles  referred  to,  a  conversion;  and  the  authorities,  I 
think,  sustain  this  conclusion  by  a  decided  weight  of  adjudication. 
A  leading  case  is  Syeds  v.  Hay,  4  Term  R.  260,  where  it  was  held  that 
trover  would  lie  against  the  master  of  a  vessel  who  had  landed  goods 
of  the  plaintiff  contrary  to  the  plaintiff's  orders,  though  the  plaintiff 
might  have  had  them  by  sending  for  them,  and  paying  the  wharfage. 
Butler,  J.,  said:  "If  one  man  who  is  intrusted  with  the  goods  of 
another  put  them  into  the  hands  of  a  third  person,  contrary  to  orders, 
it  is  a  conversion."  This  case  has  been  repeatedly  cited  by  the  courts 
CHASE  (2o  ED.) — 32 


498  LAW  OF  TORTS. 

of  this  state  as  good  law,  and  has  never,  to  my  knowledge,  been  dis- 
approved, although  it  has  been  distinguished  from  another  class  of 
cases  upon  which  the  defendant  relies,  and  which  will  be  hereafter 
noticed. 

In  Spencer  v.  Blackman,  9  Wend.  167,  a  watch  was  delivered  to 
the  defendant  to  have  its  value  appraised  by  a  watchmaker.  He  put 
it  into  the  possession  of  a  watch-maker,  when  it  was  levied  upon  by 
virtue  of  an  execution,  not  against  the  owner,  and  it  was  held  to  be 
a  conversion.  Savage,  C.  J.,  said :  "The  watch  was  intrusted  to  him 
for  a  special  purpose,  to  ascertain  its  value.  He  had  no  orders  or 
leave  to  deliver  it  to  Johnson,  the  watch-maker,  nor  any  other  person." 
So,  when  one  hires  a  horse  to  go  an  agreed  distance,  and  goes  be- 
yond that  distance,  he  is  liable  in  trover  for  a  conversion.  Wheelock 
v.  Wheelwright,  5  Mass.  104.  So  when  a  factor  in  Buffalo  was  di- 
rected to  sell  wheat  at  a  specified  price,  on  a  particular  day,  or  ship 
it  to  New  York,  and  did  not  sell  or  ship  it  that  day,  but  sold  it  the 
next  day  at  the  price  named,  held  that,  in  legal  effect,  it  was  a  con- 
version. Scott  v.  Rogers,  31  N.  Y.  676.  See,  also,  Addison  on 
Torts,  310,  and  cases  there  cited. 

The  cases  most  strongly  relied  upon  by  the  learned  counsel  for 
the  appellant  are  Dufresne  v.  Hutchinson,  3  Taunt.  117,  and  Sarjeant 
v.  Blunt,  16  Johns,  74,  holding  that  a  broker  or  agent  is  not  liable  in 
trover  for  selling  property  at  a  price  below  instructions.  The  dis- 
tinction in  the  two  classes  of  cases,  I  apprehend,  is  that  in  the  latter 
the  agent  or  broker  did  nothing  with  the  property  but  what  he  was 
authorized  to  do.  He  had.  a  right  to  sell  and  deliver  the  property. 
He  disobeyed  instructions  as  to  price  only,  and  was  liable  for  miscon- 
duct, but  not  for  conversion  of  the  property, — a  distinction  which,  in 
a  practical  sense,  may  seem  technical,  but  is  founded  probably  upon 
the  distinction  between  an  unauthorized  interference  with  the  prop- 
erty itself,  and  the  avails  or  terms  of  sale.  At  all  events,  the  distinc- 
tion is  fully  recognized  and  settled  by  authority.  In  the  last  case, 
Spencer,  J.,  distinguished  it  from  Syeds  v.  Hay,  supra.  He  said : 
"In  the  case  of  Syeds  v.  Hay,  4  Term  R.  260,  the  captain  disobeyed  his 
orders  in  delivering  the  goods.  He  had  no  right  to  touch  them  for 
the  purpose  of  delivering  them  on  that  wharf." 

The  defendant  had  a  right  to  sell  the  note,  and  if  he  had  sold  it 
at  a  less  price  than  that  stipulated,  he  would  not  have  been  liable  in 
this  action ;  but  he  had  no  right  to  deliver  the  note  to  Foote  to  take 
away,  any  more  than  he  had  to  pay  his  own  debt  with  it.  Morally 
there  might  be  a  difference,  but  in  law  both  acts  would  be  a  conver- 
sion, each  consisting  in  exercising  an  unauthorized  dominion  over 
the  plaintiff's  property.  Palmer  v.  Jarmain,  2  Mees.  &  W.  282,  is 
plainly  distinguishable.  There,  the  agent  was  authorized  to  get  the 
note  discounted,  which  he  did,  and  appropriated  the  avails.  Parke, 
B.,  said :  "The  defendant  did  nothing  with  the  bill  which  he  was  not 


CONVERSION  OF  PERSONAL  PROPERTY.  499 

authorized  to  do."  So  in  Cairnes  v.  Bleecker,  12  Johns.  300,  where 
an  agent  was  authorized  to  deliver  goods  on  receiving  sufficient  se- 
curity, and  delivered  the  goods  on  inadequate  security,  it  was  held 
that  trover  would  not  lie,  for  the  reason  that  the  question  of  the  suffi- 
ciency of  the  security  was  a  matter  of  judgment.  In  McMorris  v. 
Simpson,  21  Wend.  610,  Bronson,  J.,  lays  down  the  general  rule  that 
the  action  of  trover  "may  be  maintained  when  the  agent  has  wrong- 
fully converted  the  property  of  his  principal  to  his  own  use,  and  the 
fact  of  conversion  may  be  made  out  by  showing  either  a  demand  and 
refusal,  or  that  the  agent  has  without  necessity  sold  or  otherwise 
disposed  of  the  property,  contrary  to  his  instructions.  When  an 
agent  wrongfully  refuses  to  surrender  the  goods  of  his  principal,  or 
wholly  departs  from  his  authority  in  disposing  of  them,  he  makes  the 
property  his  own,  and  may  be  treated  as  a  tort-feasor."  The  result 
of  the  authorities  is  that,  if  the  agent  parts  with  the  property  in  a 
way  or  for  a  purpose  not  authorized,  he  is  liable  for  a  conversion;  but 
if  he  parts  with  it  in  accordance  with  his  authority,  although  at  less 
price,  or  if  he  misapplies  the  avails,  or  takes  inadequate  for  sufficient 
security,  he  is  not  liable  for  a  conversion  of  the  property,  but  only  in  an 
action  on  the  case  for  misconduct.  It  follows  that  there  was  no  error 
in  the  charge.  The  question  of  good  faith  is  not  involved.  A  wrong- 
ful intent  is  not  an  essential  element  of  the  conversion.  It  is  suffi- 
cient if  the  owner  has  been  deprived  of  his  property  by  the  act  of  an- 
other assuming  an  unauthorized  dominion  and  control  over  it.  Boyce 
v.  Brockway,  31  N.  Y.  490. 

In  a  moral  sense,  the  defendant  may  have  acted  in  good  faith,  and 
hence  the  judgment  may  operate  harshly  upon  him,  but  the  fact 
found  by  the  jury  renders  him  liable  in  this  action.  The  judgment 
must  be  affirmed.  All  concur. 

Judgment  affirmed. 

(Every  act  of  control  or  dominion  over  property  without  the  owner's  au- 
thority, and  in  disregard  of  his  rights,  is,  in  contemplation  of  law,  a  conver- 
sion. Trover  may  be  maintained  for  every  species  of  personal  property  which 
is  the  subject  of  private  ownership,  including  money,  bankbills,  notes,  and 
bonds.  State  v.  Omaha  Nat.  Bk.  [Neb.]  81  N.  W.  319;  cf.  Industrial,  etc.,  Trust 
v.  Tod,  170  N.  Y.  233,  245,  63  N.  E.  285 ;  Mayer  v.  Springer  [111.]  61  N.  E.  348 ; 
Spooner  v.  Manchester,  133  Mass.  270,  43  Am.  Rep.  514;  Evans  v.  Mason,  64 
N.  H.  98,  5  Atl.  766 ;  Erskine  v.  Savage,  96  Me.  57,  51  Atl.  242.) 


500  LAW  OV  TORTS. 

(168  N.  Y.  533,  61  N.  E.  896,  85  Am.  St.  Rep.  699.) 

WAMSLEY  v.  ATLAS  S.  S.  CO.  (in  part). 
(Court  of  Appeals  of  New  York.     November  26,  1901.) 

L  CONVERSION— LIABILITY  OF  CARRIER — NEGLIGENCE. 

Where  goods  have  been  intrusted  to  a  common  carrier  for  transporta- 
tion, and  are  delivered  by  him,  through  mistake,  or  under  a  forged  order, 
to  the  wrong  person,  such  misdelivery  constitutes  conversion ;  but  it  is 
not  conversion  if  the  property  is  stolen  or  lost  through  the  negligence 
of  the  carrier,  and  so  cannot  be  delivered  to  the  owner.  A  refusal  of  the 
carrier  to  deliver  the  goods  on  demand  does  not  alter  the  case,  since,  not 
having  the  goods  in  his  possession,  he  cannot  deliver  them. 

2.  SAME. 

A  box  of  negatives  and  prints,  belonging  to  a  passenger  on  a  steamship, 
disappeared  from  the  storeroom  of  the  vessel,  and  could  not  be  found 
when  the  vessel  reached  its  destination  and  the  owner  then  demanded 
its  delivery  to  him.  It  was  found  some  months  afterwards  in  another 
part  of  the  vessel,  but  who  put  it  there,  whether  some  servant  of  the  car- 
rier or  some  passenger,  was  never  discovered.  Held  that,  though  the 
carrier  might  possibly  have  been  liable  for  negligence,  he  was  not  re- 
sponsible, in  an  action  brought  against  him  for  conversion,  on  the  fore- 
going state  of  facts  merely,  and  the  court's  refusal  to  charge  that  "he 
could  only  be  made  liable  in  this  action  on  proof  of  actual  conversion  of 
the  box  of  negatives"  was  reversible  error. 

Appeal  from  Supreme  Court,  Appellate  Division,  First  Depart- 
ment. 

Action  by  William  E.  Wamsley  against  the  Atlas  Steamship  Com- 
pany, Limited.  From  a  judgment  of  the  appellate  division  (63  N.  Y. 
Supp.  761)  affirming  a  judgment  in  favor  of  plaintiff,  defendant  ap- 
peals. Reversed. 

The  defendant  is  the  owner  of  a  line  of  steamships  running  between 
South  America,  the  West  Indies,  and  New  York.  In  May,  1895,  one 
S.  F.  Massey  took  passage  on  one  of  defendant's  vessels,  named  the 
"Alleghany,"  at  Costa  Rica,  for  New  York.  He  took  on  board  a  box 
of  negatives  and  photographic  prints,  which  were  placed  in  the  store- 
room of  the  vessel.  Upon  arriving  in  New  York  this  box  could  not 
be  found.  Thereafter  Massey  assigned  to  the  plaintiff  his  interest  in 
the  negatives  and  prints,  and  this  action  was  begun  to  recover  the  value 
thereof.  The  complaint  is  for  conversion,  and  alleges  that  Massey 
delivered  the  said  box  to  the  defendant,  to  be  returned  to  him  on  de- 
mand, and  "thereafter,  at  the  city  of  New  York,  said  Massey  de- 
manded from  the  defendant  the  return  to  him  of  said  box  of  negatives 
and  views ;  but  this  defendant  has  refused  and  neglected  to  deliver  the 
same,  and  has  wrongfully  converted  the  same  to  his  own  use  and 
benefit."  Upon  the  trial  it  was  proved  that  the  defendant  endeavored 
to  find  the  box  in  question,  and  that  it  was  not  discovered  until  Jan- 
uary, 1896,  or  about  two  months  after  the  commencement  of  this  action. 
It  was  then  tendered  to  the  plaintiff,  who  refused  to  receive  it  The 


CONVERSION  OF  PERSONAL  PROPERTY.  501 

box  was  found  in  the  forepeak  of  the  vessel  among  a  lot  of  signal 
rockets.  How  it  came  there,  does  not  appear.  Other  facts  are  stated 
in  the  opinion.  The  action  has  been  twice  tried.  Upon  the  first  trial 
the  complaint  was  dismissed.  The  judgment  entered  upon  this  dis- 
missal was  reversed  by  the  appellate  division.  Upon  the  second  trial 
the  case  was  submitted  to  the  jury,  and  a  verdict  rendered  in  favor 
of  the  plaintiff  for  $900.  The  judgment  entered  upon  that  verdict  has 
been  unanimously  affirmed. 

WERNER,  J.  The  action  was  brought  and  tried  upon  the  the- 
ory that  the  defendant  was  liable  as  for  a  conversion.  The  ques- 
tion of  defendant's  liability  as  for  a  conversion  must  therefore  be 
determined  in  the  light  of  that  relation.  The  general  rule  is  that 
a  common  carrier  is  not  liable  in  conversion  for  mere  nonfeasance, 
although  he  may  be  liable  for  negligence.  So,  on  the  contrary, 
he  may  be  held  in  trover  when  he  is  guilty  of  misfeasance,  although 
the  wrong  may  have  been  unintentional.  The  principle  is  thus 
stated  in  Hawkins  v.  Hoffman,  6  Hill,  588,  41  Am.  Dec.  768.  "Tro- 
ver will  lie  when  goods  have  been  lost  to  the  owner  by  the  act 
of  the  carrier,  though  there  may  have  been  no  intentional  wrong, 
as  when  goods  are  by  mistake  or  under  a  forged  order  deliver- 
ed to  the  wrong  person.  But  it  will  not  lie  for  the  mere  omission 
of  the  carrier,  as  where  the  property  has  been  stolen  or  lost  through 
his  negligence,  and  so  cannot  be  delivered  to  the  owner.  Mere  non- 
feasance  does  not  work  a  conversion  of  the  property,  and,  although 
the  owner,  may  have  another  action,  he  cannot  maintain  trover."  In 
that  case  a  trunk  was  lost,  and  in  referring  to  the  fact  the  court  con- 
tinued :  "A  demand  and  refusal  would  not  alter  the  case,  for,  as  the 
trunk  was  either  stolen  or  lost,  the  defendant  could  not  deliver  it. 
Demand  and  refusal  are  only  evidence  of  a  conversion  where  the  de- 
fendant was  in  such  a  condition  that  he  might  have  delivered  the  prop- 
erty if  he  would."  In  Packard  v.  Getman,  4  Wend.  615,  21  Am.  Dec. 
168,  the  supreme  court  said :  "Trover  lies  not  against  a  carrier  for 
negligence,  as  for  losing  a  box,  but  it  does  for  an  actual  wrong ;  nor 
for  goods  lost  or  stolen  from  a  carrier  or  wharfinger.  There  must 
be  an  injurious  conversion ;  something  more  than  a  bare  omission. 
Where  a  carrier  loses  goods  by  accident,  trover  does  not  lie ;  but  where 
he  is  an  actor,  and  delivers  them  to  a  third  person,  though  by  mis- 
take, the  action  lies.  It  also  lies  where  the  defendant  refuses  to  de- 
liver the  goods  according  to  contract,  he  having  the  possession.  But 
if  lost  or  stolen,  so  that  he  cannot  deliver  them,  and  his  inability  does 
not  arise  from  any  act  of  his  own,  trover  does  not  lie,  though  case 
does."  To  the  same  effect  is  Briggs  v.  Railroad  Co.,  28  Barb.  515, 
where  it  was  held  that  "a  mere  delay  in  the  delivery  of  goods  by  a  com- 
mon carrier  is  not  a  conversion  thereof,  nor  will  it  entitle  the  owner 
to  recover  the  value  thereof."  Following  these  cases,  and  citing  with 


502  LAW  OF  TORTS. 

approval  the  authorities  upon  which  they  are  based,  this  court,  in 
Magnin  v.  Dinsmore,  70  N.  Y.  417,  26  Am.  Rep.  610,  thus  stated 
the  law  of  conversion  as  applied  to  common  carriers :  "A  conversion 
implies  a  wrongful  act;  a  misdelivery;  a  wrongful  disposition  or 
withholding  of  property.  A  mere  nondelivery  will  not  constitute  a 
conversion ;  nor  will  a  refusal  to  deliver  on  demand,  if  the  goods  have 
been  lost  through  negligence  or  have  been  stolen."  The  case  last 
cited  was  brought  against  the  president  of  an  express  company  to  re- 
cover the  value  of  certain  watches  delivered  to  that  company  by  the 
plaintiff  for  transportation  to  a  consignee  in  Memphis.  The  question 
was  whether  the  plaintiff  was  limited  to  a  recovery  as  for  defendant's 
negligence  by  the  conditions  of  the  contract  of  carriage,  or  whether 
plaintiff  could  recover  the  full  value  of  the  goods  in  conversion.  In 
referring  to  the  decision  of  this  court  upon  a  former  appeal  in  that 
case,  the  court  said :  "This  court  held  that  the  nondelivery  of  the 
goods,  with  the  other  proofs  in  the  case,  was  evidence  of  negligence 
to  be  submitted  to  the  jury,  and  that  the  onus  was  upon  the  defend- 
ants to  show  that  they  were  lost  without  the  negligence  of  the  carriers 
or  their  servants.  But  an  action  for  a  conversion  will  not  be  sustained 
upon  such  evidence  alone." 

The  facts  in  this  case  are  practically  undisputed.  Although  the 
complaint  alleges  a  demand  and  refusal,  and  the  answer  admits  the 
allegation  .so  far  as  it  relates  to  the  demand  made  by  the  plaintiff,  the 
evidence  shows  that  the  refusal  was  merely  technical,  and  not  actual. 
The  defendant,  believing  that  the  box  of  negatives  had  either  been 
lost  or  stolen,  simply  expressed  its  inability  to  deliver  the  same.  Al- 
though the  box  was  subsequently  found  on  board  defendant's  vessel 
Alleghany,  under  circumstances  which  raised  the  presumption  that  it 
had  not  been  removed  from  the  ship,  there  was  no  evidence  showing 
the  circumstances  of  its  removal  from  the  storeroom  in  which  it  had 
been  originally  deposited.  It  may  have  been  stolen  by  a  fellow  passen- 
ger, or  have  been  removed  and  misplaced  by  some  one  for  whose 
acts  the  defendant  was  not  responsible  in  an  action  for  conversion, 
although  liable  for  negligence. 

This  brings  us  to  the  defendant's  request  to  charge,  which  raises 
the  serious  question  in  the  case.  The  court  was  asked  to  charge  the 
jury,  "In  such  case  the  defendant  can  only  be  made  liable  in  this 
action  upon  proof  of  actual  conversion  of  the  box  of  negatives."  The 
court  declined  to  charge  otherwise  than  it  had  already  charged,  and 
defendant's  counsel  excepted.  Unless  the  court  had  the  right  to  in- 
struct the  jury,  as  a  matter  of  law,  that  the  defendant  was  guilty  of 
conversion,  this  request  should  have  been  charged,  if  the  instruction 
had  not  previously  been  given.  A  brief  reference  to  the  salient  facts 
will  suffice  to  show  that  the  court  would  not  have  been  authorized 
to  hold,  as  a  matter  of  law,  that  the  defendant  was  guilty  of  conver- 
sion. The  facts,  although  substantially  undisputed,  were  such  as  to 


CONVERSION  OP  PERSONAL  PROPERTY.  503 

support  conflicting  inferences.  The  box  of  negatives  was  placed  in 
the  storeroom.of  the  vessel  by  one  of  the  defendant's  servants.  When 
the  owner  disembarked,  it  could  not  be  found.  A  camera  belonging 
to  him  had  been  surreptitiously  taken  from  his  stateroom,  and  some 
jugs  of  water  that  had  been  placed  in  the  storeroom  with  the  box  of 
negatives  were  also  missing.  The  camera  was  recovered  under  cir- 
cumstances indicating  that  it  had  been  stolen,  but  the  record  is  silent 
as  to  the  circumstances  of  the  theft  or  the  identity  of  the  thief.  The 
jugs  of  water  were  found  the  day  after  the  loss  was  reported  to  the 
ship's  officers.  The  box  of  negatives  was  not  recovered  until  after 
the  lapse  of  several  months,  when  it  was  found  in  the  forepeak  of  the 
vessel,  among  some  signal  rockets.  How  it  came  to  be  there  is  a 
matter  of  conjecture.  Whether  it  was  stolen  by  the  same  person  who 
took  the  camera,  or  whether  it  was  taken  by  one  of  the  defendant's 
employees  under  the  belief  that  it  contained  brandy,  as  indicated  by  the 
marks  on  the  box,  does  not  appear.  Conceding  that  the  defendant  is 
liable  in  conversion  for  the  misfeasance  of  its  servants,  we  must  al.co 
admit  that  the  evidence  does  not  affirmatively  disclose  any  such  mis- 
feasance. As  we  have  seen,  the  theft  or  loss  of  the  goods  through 
the  mere  nonfeasance  of  the  carrier  does  not  render  him  liable  in 
conversion.  The  mere  fact  that  the  box  was  actually  on  board  the 
defendant's  ship  is  not  necessarily  inconsistent  with  the  view  that  it 
may  have  been  stolen  or  lost.  If,  for  instance,  the  box  had  been 
stolen  by  one  for  whose  acts  the  defendant  was  not  responsible,  it 
would  be  none  the  less  a  theft  because  it  had  been  secreted  in  some 
inaccessible  part  of  the  vessel,  instead  of  being  hidden  elsewhere. 
So,  if  by  mistake  the  box  had  been  taken  by  a  passenger  who,  after 
discovering  that  it  did  not  belong  to  him,  had  placed  it  where  it  could 
not  be  found,  there  might  be  a  case  of  negligence  against  the  de- 
fendant, when  the  facts  would  not  support  a  charge  of  conversion. 
These  suggestions  sufficiently  indicate  the  necessity,  under  the  evi- 
dense  herein,  of  a  direct  and  explicit  charge  to  the  jury  that  the  plain- 
tiff could  not  recover  in  this  action  unless  he  had  made  proof  of  ac- 
tual conversion.  Let  us  now  see  whether  the  charge,  as  it  stood 
prior  to  this  request,  had  fairly  and  sufficiently  instructed  the  jury 
upon  this  point.  The  following  quotation  contains  all  that  was  said 
on  that  subject :  "If  the  said  box  was  discharged  from  the  ship,  and 
passed  by  the  custom-house  inspectors,  and  thereupon  left  on  the  dock 
at  pier  6,  subject  to  Lieut.  Massey's  risk,  and  it  was  thereafter  taken  on 
board  at  Lieut.  Massey's  request  and  at  his  risk,  the  defendant  is 
entitled  to  your  verdict.  But  if  these  matters  did  not  occur, — if  the 
box  did  not  come  out  of  the  ship  until  after  it  was  finally  discovered, 
after  repeated  search, — it  will  be  for  you  to  say  whether  the  conduct 
of  the  defendant  or  its  servants,  by  which  the  box  became  mixed  up 
with  a  lot  of  other  boxes,  containing  signals,  was,  under  all  the  cir- 
cumstances disclosed,  excusable  or  justifiable,  so  as  not  to  make 


504  LAW  OF  TORTS. 

defendant  liable  for  its  failure  to  deliver  on  demand."  It  will  be  seen 
that  this  charge  not  only  fails  to  cover  the  point  made  by  the  request, 
but  it  assumes  that  the  defendant  or  its  servants  removed  this  box 
and  mixed  it  with  the  signals,  and  upon  that  assumption  the  jury  was 
left  to  say  whether  such  conduct  was  "excusable  or  justifiable."  We 
think  it  was  error  for  the  court  to  decline  to  charge  the  substance  of 
the  request  above  referred  to. 

The  judgment  of  the  court  below  should  be  reversed,  and  a  new 
trial  ordered,  with  costs  to  abide  the  event. 

(To  the  same  effect  is  Price  v.  Oswego,  etc.,  R.  Co.,  50  N.  Y.  213,  10  Am.  Rep. 
475;  Pacific  Express  Co.  v.  Shearer,  160  111.  215,  43  N.  E.  816,  37  L.  R.  A.  177, 
52  Am.  St  Rep.  324.) 


(45  N.  J.  Law,  515.) 

FROME  v.  DENNIS. 

(Supreme  Court  of  New  Jersey.    November  Term,  1883.) 

1.  CONVEBSION— WHAT  ACTS  CONSTITUTE. 

To  constitute  a  conversion,  there  must  be  acts  amounting  to  a  repudia- 
tion of  the  owner's  right  in  the  property,  or  an  exercise  of  ownership  over 
it  inconsistent  with  such  right,  or  some  act  done  which  destroys  or 
changes  the  quality  of  the  property. 

2.  SAME — INTENT — KNOWLEDGE  OF  OWNERSHIP. 

A  person  who,  having  no  knowledge  of  the  ownership  of  property,  bor- 
rows it  of  the  person  having. possession  thereof,  and,  after  using  it,  re- 
turns it  again  to  him,  supposing  him  to  be  the  owner,  is  not  liable  for  a 
conversion,  in  an  action  by  the  true  owner. 

3.  SAME— DEMAND  BY  OWNER  AND  REFUSAL. 

Under  such  circumstances,  the  failure  of  the  borrower  to  deliver  the 
property  to  the  owner,  upon  demand  by  him  after  it  has  been  returned 
to  the  lender,  is  not  evidence  of  a  conversion. 

Certiorari  to  Court  of  Common  Pleas,  Warren  County. 
Action  of  trover  by  Thomas  P.  Frome  against  Andrew  J.  Dennis 
for   the   alleged   conversion   of   a   certain  plow. 
Argued  before  D1XON  and  PARKER,  JJ. 

DIXON,  J.  In  August,  1879,  the  plaintiff  left  his  plow  on  the 
farm  of  one  Cummins,  with  the  latter's  consent,  until  he,  the  plaintiff, 
should  come  and  take  it  away.  In  April,  1880,  the  farm  passed  into 
the  possession  of  one  Hibler,  the  plow  being  still  there.  In  June, 
1880,  the  defendant,  a  neighboring  farmer,  borrowed  the  plow  of 
Hibler  to  plow  a  field,  supposing  the  plow  to  be  Hibler's,  and,  having 
used  it,  in  three  or  four  days  returned  it  to  Hibler,  still  supposing  it 
to  be  his  property.  In  the  summer  of  1881  the  plaintiff  informed 
the  defendant  that  it  was  his  plow  which  he  had  used,  and  demanded 
of  him  pay  for  the  use,  and  the  return  of  the  plow  or  its  value;  and, 


CONVERSION  OF  PERSONAL  PROPERTY.  505 

the  defendant  not  complying,  the  plaintiff  brought  an  action  of  trover 
for  the  plow.  The  justice  before  whom  the  suit  was  instituted,  and 
the  common  pleas  on  appeal,  each  gave  judgment  for  the  plaintiff  for 
the  value  of  the  plow.  The  judgment  of  the  pleas  is  now  before  us 
on  certiorari,  and  the  defendant  below  contends  that  the  foregoing 
facts  proved  on  the  trial  did  not  justify  the  judgment. 

In  this  contention  we  agree  with  the  defendant.  In  order  to  main- 
tain an  action  of  trover,  it  is  necessary  to  prove  an  act  of  conversion 
by  the  defendant  of  the  plaintiff's  property.  What  will  constitute  a 
conversion  is,  I  think,  well  summed  up  by  Mr.  Justice  Depue  in 
Woodside  v.  Adams,  40  N.  J.  Law,  417,  in  these  words:  "To  con- 
stitute a  conversion  of  goods,  there  must  be  some  repudiation  by 
the  defendant  of  the  owner's  right,  or  some  exercise  of  dominion 
over  them  by  him  inconsistent  with  such  right,  or  some  act  done 
which  has  the  effect  of  destroying  or  changing  the  quality  of  the 
chattel."  This  subject  has  quite  recently  received  considerable  dis- 
cussion in  the  exchequer  chamber  and  house  of  lords  of  England, 
in  Fowler  v.  Hollins,  L.  R.  7  Q.  B.  616,  and  L.  R.  7  H.  L.  757.  The 
facts  upon  which  the  court  finally  settled  as  the  basis  of  decision  made 
the  case  a  plain  one  of  conversion.  They  were  that  one  Bayley  had 
fraudulently  come  into  possession  of  13  bales  of  cotton  belonging  to 
the  plaintiff,  and  had  sold  and  delivered  them  to  the  defendant,  who 
bought  in  good  faith,  and  who  then  sold  and  delivered  them  in  good 
faith  to  Micholls  &  Co.  Here  was  clearly  an  exercise  of  dominion 
over  the  goods  by  the  defendant  inconsistent  with  the  plaintiff's  right. 
But  in  the  course  of  the  cause  some  of  the  judges  thought  that,  accord- 
ing to  the  case  reserved,  the  defendant,  in  the  transfer  from  Bayley 
to  Micholls  &  Co.,  dealt  only  as  broker  and  agent  of  the  latter ;  and  in 
examining  the  goods,  receiving  them  from  Bayley,  and  forwarding 
them  to  Micholls  &  Co.,  acted  without  any  actual  intention  with  re- 
gard to,  or  any  consideration  of,  the  property  in  the  goods  being  in 
one  person  more  than  another;  and  so  the  question  was  raised  wheth- 
er such  a  possession  of  the  goods  and  such  an  asportation  amounted, 
in  law,  to  a  conversion.  Many  of  the  English  cases  were  commented 
on  at  length  by  Mr.  Justice  Brett,  in  both  tribunals,  and  he  insisted, 
with  great  force  and  clearness,  upon  a  negative  response.  Byles,  J., 
and  Kelly,  C.  B.,  expressly  concurred  in  this  opinion,  and  the  other 
judges  in  the  exchequer  chamber  seem  not  to  have  disagreed  with  it 
in  point  of  law,  but  they  rested  their  conclusion  upon  a  different  view 
of  the  facts.  In  the  house  of  lords  Mr.  Justice  Blackburn  expressed 
his  opinion  that  the  defendant  was  liable,  because  he  both  entered 
into  a  contract  with  Bayley,  and  also  assisted  in  changing  the  custody 
of  the  goods,  and  so  knowingly  and  intentionally  assisted  in  transferring 
the  dominion  in  the  property  in  the  goods  to  Micholls  &  Co.,  that 
they  might  dispose  of  them  as  their  own.  This  he  deemed  a  conver- 
sion b>  the  defendant,  no  matter  whether  he  acted  as  broker  or  not. 


506  LAW  OF  TORTS. 

In  the  course  of  his  remarks  he  lays  down  the  principle  that  one  who 
deals  with  goods  at  the  request  of  the  person  who  has  the  actual 
custody  of  them,  in  the  bona  fide  belief  that  the  custodier  is  the  true 
owner,  or  has  the  authority  of  the  true  owner,  should  be  excused  from 
what  he  does,  if  the  act  is  of  such  a  nature  as  would  be  excused  if  done 
by  the  authority  of  the  person  in  possession,  if  he  was  a  finder  of  the 
goods  or  intrusted  with  their  custody.  He  concedes,  moreover,  that 
this  is  not  the  extreme  limit  of  the  excuse,  and  doubts  whether  it 
would  be  a  conversion  for  a  miller  to  grind  grain  into  flour,  and  re- 
turn the  flour  to  the  person  who  brought  the  grain,  before  he  heard 
of  the  true  owner.  Under  the  definition  of  Mr.  Justice  Depue,  above 
quoted,  this  act  of  the  miller  would  be  a  conversion,  because  it  changed 
the  quality  of  the  owner's  goods.  Mr.  Baron  Cleasby,  while  con- 
curring with  those  who  looked  upon  the  defendant  as  a  principal,  and 
therefore  guilty,  says  with  reference  to  this  view  that  he  was  a  broker 
merely:  "How  far  the  intermeddling  with  the  goods  themselves  by 
delivering  them  would"  involve  a  broker  in  responsibility  to  the  own- 
er "admits  of  question,  and  was  the  subject  of  much  argument  at  the 
bar,  and  might  depend  upon  the  extent  to  which  the  broker  in  such 
case  could  be  regarded  as  having  an  independent  possession  of  the 
goods  and  delivering  them  for  the  purpose  of  passing  the  property." 
Mr.  Justice  Grove  advised  the  house  in  favor  of  the  plaintiff,  on  the 
ground  that  the  defendant  intermeddled  with  goods  which  were  not 
his  own,  and  exercised  a  dominion  over  them  inconsistent  with  the 
right  of  the  true  owner.  Mr.  Baron  Amphlett  concurred  with  Brett. 
Lord  Chelmsford,  Chancellor  Cairns,  and  Lords  Hatherley  and  O'Ha- 
gan  advised  for  the  plaintiff,  in  substance,  because  the  defendant  had 
exercised  dominion  over  the  plaintiff's  property  by  disposing  of  it  to 
Micholls  &  Co. 

It  is  apparent,  I  think,  from  a  perusal  of  these  judgments,  that 
every  judge  based  his  opinion  of  the  defendant's  guilt  on  the  ques- 
tion whether  he  had  done  any  act  which  amounted  to  a  repudiation 
of  the  plaintiff's  title,  or  to  an  exercise  of  dominion,  i.  e.,  ownership, 
over  the  goods.  Less  than  this  would  constitute  a  trespass,  but  not 
a  conversion,  so  long  as  the  character  of  the  chattels  remained  un- 
changed. 

In  a  very  late  case  in  Massachusetts,  (Spooner  v.  Manchester,  133 
Mass.  270,  43  Am.  Rep.  514,)  a  similar  view  is  expressed.  Field,  J., 
there  says :  "Conversion  is  based  upon  the  idea  of  an  assumption  of 
property  or  a  right  of  dominion  over  the  thing  converted,  *  *  * 
and  it  is  therefore  not  every  wrongful  intermeddling  with,  or  wrong- 
ful asportation  or  wrongful  detention  of,  personal  property  that 
amounts  to  a  conversion.  Acts  which  themselves  imply  an  assertion 
of  title  or  of  a  right  of  dominion  over  personal  property,  such  as  a 
sale,  letting,  or  destruction  of  it,  amount  to  a  conversion,  even  al- 
though the  defendant  may  have  honestly  mistaken  his  rights ;  but  acts 


CONVERSION  OP  PERSONAL  PROPERTY.  507 

which  do  not,  in  themselves,  imply  an  assertion  of  title  or  of  a  right 
of  such  dominion  over  such  property  will  not  sustain  an  action  of 
trover,  unless  done  with  the  intention  to  deprive  the  owner  of  it  per- 
manently or  temporarily,  or  unless  there  has  been  a  demand  for  the 
property,  and  a  neglect  or  refusal  to  deliver  it,  which  are  evidence  of 
a  conversion,  because  they  are  evidence  that  the  defendant,  in  with- 
holding it,  claims  the  right  to  withhold  it,  which  is  a  claim  of  a  right 
of  dominion  over  it.  *  *  *  Whether  an  act  involving  the  tem- 
porary use,  control,  or  detention  of  property  implies  an  assertion  of  a 
right  of  dominion  over  it  may  well  depend  upon  the  circumstances 
of  the  case  and  the  intention  of  the  person  dealing  with  the  property." 
To  the  same  effect  is  Laverty  v.  Snethen,  68  N.  Y.  522,  23  Am.  Rep. 
184. 

In  the  light  of  these  authorities,  the  conduct  of  the  defendant  in 
the  case  at  bar  did  not  amount  to  a  conversion  of  the  plow.  He  re- 
ceived it  for  temporary  use  only,  and  without  any  claim  of  right  or 
dominion  over  it,  but  having  a  mere  license  from  the  possessor,  re- 
vocable at  once  by  either  the  possessor  or  the  true  owner.  He  sur- 
rendered it  to  the  possessor,  from  whom  he  had  received  it,  without 
any  intention  of  enlarging  or  changing  his  title,  without  any  reference 
to  anybody's  title,  and  doubtless  would  have  as  readily  surrendered 
to  the  plaintiff  upon  his  ownership  being  shown.  Neither  in  the  use 
nor  in  the  surrender  by  the  defendant  does  there  appear  any  repudia- 
tion of  the  owner's  right,  or  any  exercise  of  dominion  inconsistent 
with  such  right.  His  acts  may  have  constituted  a  trespass,  but  not  a 
conversion.  This  being  so,  his  subsequent  failure  to  deliver  the  plow 
to  the  plaintiff  on  demand  was  not  evidence  of  a  conversion,  for  the 
reason  that  delivery  was  then  impossible  to  him.  He  did  not  refuse 
to  deliver,  but  could  not.  Ross  v.  Johnson,  5  Burrows,  2825 ;  Bank 
v.  Wheeler,  48  N.  Y.  492,  8  Am.  Rep.  564;  Magnin  v.  Dinsmore,  70 
N.  Y.  410,  26  Am.  Rep.  608. 

The  plaintiff  contends  that  the  evidence  on  the  part  of  the  defend- 
ant as  to  his  conversation  with  Hibler  at  the  time  of  borrowing  the 
plow  was  illegal.  It  was  not,  however.  It  being  proper  to  show  that 
the  defendant  came  into  possession  of  the  plow,  the  declarations  of 
himself  and  of  the  person  from  whom  he  received  possession,  con- 
temporaneous with  the  transfer  and  indicative  of  its  character,  were 
admissible  as  part  of  the  res  gestse.  Luse  v.  Jones,  39  N.  J.  Law,  707 ; 
Hunter  v.  State,  40  N.  J.  Law,  495. 

The  judgment  below  should  be  reversed. 

(The  mere  act  of  removal  of  another's  goods  from  one  place  to  another,  Inde- 
pendent of  any  claim  over  them  by  the  one  so  removing  them,  is  not  a  con- 
version, but  only  a  trespass.  American  Union  Telegraph  Co.  v.  Middleton, 
SO  N.  Y.  408;  Falke  v.  Fletcher,  18  C.  B.  [N.  S.]  403.) 


508  I<AW  OF  TORTS. 

(14  R.  I.  39,  51  Am.  Rep.  340.) 

FREEMAN  et  al.  v.  BOLAND. 

(Supreme  Court  of  Rhode  Island.    December  5,  1882.) 

CONVERSION — WHAT  ACTS  CONSTITUTE — INFANCY. 

A  person,  though  an  Infant,  who  hires  a  horse  and  wagon  to  drive  to  a 
particular  place,  and  drives  beyond  such  place,  is  liable  for  a  conversion. 

Exceptions  from  Court  of  Common  Pleas. 

Action  of  trover  by  Freeman  &  Francis  against  Frank  P.  Boland 
for  the  alleged  conversion  of  a  horse  and  buggy.  Verdict  and  judg- 
ment for  plaintiffs.  Defendant  alleged  exceptions. 

DURFEE,  C.  J.  The  question  here  is  whether  an  infant  or 
minor  who  hires  a  horse  and  buggy  to  drive  to  a  particular  place, 
and  who,  having  got  them  under  the  hiring,  drives  beyond  the  place 
or  in  another  direction,  is  liable  in  trover  for  the  conversion.  We 
think  he  is.  There  are  cases  in  which  infancy  has  been  held  to  be 
a  good  defense  to  an  action  ex  delicto,  for  tort  committed  under  con- 
tract or  in  making  it.  But  that  is  not  this  case.  The  act  here  com- 
plained of  was  committed,  not  under  the  contract,  but  by  abandoning 
it,  the  bailment  being  thus  determined.  The  contract  cannot  avail 
if  the  infant  goes  beyond  the  scope  of  it.  The  distinction  may  be 
subtle,  but  it  is  -well  settled,  and  has  been  often  applied  in  sup- 
port of  actions  precisely  like  this.  It  is  true  the  contract  must  be 
generally  put  in  proof  to  support  the  action,  but  this  is  because  the 
tort,  inasmuch  as  it  is  committed  by  departing  from  the  terms  of  the 
contract,  cannot  be  shown  without  showing  the  contract,  and  not 
because  the  contract  is  otherwise  involved.  Homer  v.  Thwing,  3 
Pick.  492;  Towne  v.  Wiley,  23  Vt.  355,  56  Am.  Dec.  85;  Fish  v. 
Ferris,  5  Duer,  49;  Vasse  v.  Smith,  6  Cranch,  226,  3  L.  Ed.  207; 
Green  v.  Sperry,  16  Vt.  390,  42  Am.  Dec.  519;  Campbell  v.  Stakes, 
2  Wend.  137,  19  Am.  Dec.  561;  Add.  Torts,  §  1314. 

Exceptions  overruled. 

(See  also  Forbes  v.  Railroad  Co.,  133  Mass.  154;  Spooner  v.  Manchester, 
133  Mass.  270,  43  Am.  Rep.  514;  Pease  v.  Smith,  61  N.  Y.  477;  Bank  v. 
Wheeler,  48  N.  Y.  492,  8  Am.  Rep.  564;  Alexander  v.  Swaekhamer,  105  Ind.  81, 
4  N.  E.  433,  5  N.  E.  908,  55  Am.  Rep.  180;  Chapman  v.  Cole,  12  Gray,  141,  71 
Am.  Dec.  739;  Hollins  v.  Fowler,  L.  R.  7  H.  L.  757;  First  Nat.  Bank  v.  North- 
ern R.  Co.,  58  N.  H.  203.  In  Doolittle  v.  Shaw  [Iowa]  60  N.  W.  621,  26  L.  R. 
A.  366,  54  Am.  St.  Rep.  562,  it  is  held  not  to  be  conversion  to  drive  a  horse 
beyond  the  point  agreed.) 


CONVERSION  OP  PERSONAL  PROPERTY.  609 


II.  IS  AN  INJURY  TO  THE  RIGHT  OF  POSSESSION. 

(1  Strange,  505.) 

ARMORY  v.   DELAMIRIB. 

(Court  of  King's  Bench.     Hilary  Term,  1722.) 

1.  CONVERSION— RIGHT  TO  POSSESSION— FINDEE  MAT  MAINTAIN  TBOVEB. 

The  finder  of  an  article  has  such  a  property  therein  as  will  enable  him 
to  keep  it  as  against  all  but  the  rightful  owner,  and  he  may  maintain 
trover  for  its  conversion. 

2.  MASTER  AND  SERVANT— LIABILITY  TO  THIRD  PERSONS. 

The  master  is  liable  for  a  conversion  by  his  apprentice  of  property 
taken  by  the  latter  in  the  line  of  his  employment. 

8.  SAME— MEASURE  OF  DAMAGES. 

A  chimney  sweep,  finding  a  jewel,  delivered  it  to  a  goldsmith  to  ascer- 
tain what  it  was,  and  the  latter  took  out  the  stones  and  returned  the 
socket.  Held,  in  an  action  of  trover,  that  unless  defendant  produced  the 
stones,  the  strongest  presumption  was  against  him,  and  the  measure  of 
damages  should  be  the  value  of  the  finest  stones  which  would  fit  into  the 
socket 

Before  PRATT,  C.  J.,  at  nisi  prius. 

The  plaintiff,  being  a  chimney  sweeper's  boy,  found  a  jewel,  and 
carried  it  to  the  defendant's  shop,  (who  was  a  goldsmith,)  to  know 
what  it  was,  and  delivered  it  into  the  hands  of  the  apprentice,  who, 
under  pretense  of  weighing  it,  took  out  the  stones;  and,  calling 
to  the  master  to  let  him  know  if  it  came  to  three  half-pence,  the  mas- 
ter offered  the  boy  the  money,  who  refused  to  take  it,  and  insisted  to 
have  the  thing  again ;  whereupon  the  apprentice  delivered  him  back 
the  socket  without  the  stones.  And  now  in  trover  against  the  master 
these  points  were  ruled: 

1.  That  the  finder  of  a  jewel,  though  he  does  not  by  such  finding 
acquire  an  absolute  property  or  ownership,  yet  he  has  such  a  property 
as  will  enable  him  to  keep  it  against  all  but  the  rightful  owner,  and 
consequently  may  maintain  trover. 

2.  That  the  action  well  lay  against  the  master,  who  gives  a  credit 
to  his  apprentice,  and  is  answerable  for  his  neglect. 

3.  As  to  the  value  of  the  jewel,  several  of  the  trade  were  examined 
to  prove  what  a  jewel  of  the  finest  water  that  would  fit  the  socket 
would  be  worth ;   and  the  chief  justice  directed  the  jury  that,  unless 
the  defendant  did  produce  the  jewel,  and  show  it  not  to  be  of  the  finest 
water,  they  should  presume  the  strongest  against  him,  and  make  the 
value  of  the  best  jewels  the  measure  of  their  damages,  which  they  ac- 
cordingly did. 


510  LAW  OF  TORTS. 

(51  Minn.  294,  53  N.  W.  636.) 

ANDERSON  v.  GOULDBERG  et  aL 

(Supreme  Court  of  Minnesota.    November  17,  1892.) 

REPLEVIN  —  WHEN    LIES  —  SUFFICIENCY    OF    BABE    POSSESSION    AS    AGAINST 

STRANGERS. 

Bare  possession  of  property,  though  wrongfully  obtained,  Is  sufficient 
title  to  enable  the  party  enjoying  it  to  maintain  replevin  against  a  mere 
stranger  to  the  property,  who  takes  it  from  him. 

Appeal  from  District  Court,  Isanti  County;    Lochren,  Judge. 

Replevin  by  Sigfrid  Anderson  against  Hans  J.  Gouldberg  and 
others,  partners  as  Gouldberg  &  Anderson,  to  recover  certain  logs. 
Verdict  for  plaintiff.  A  new  trial  was  denied,  and  defendants  appeal. 
Affirmed. 

MITCHELL,  J.  It  is  settled  by  the  verdict  of  the  jury  that  the 
logs  in  controversy  were  not  cut  upon  the  land  of  the  defendants, 
and  consequently  that  they  were  entire  strangers  to  the  property. 
For  the  purposes  of  this  appeal,  we  must  also  assume  the  fact  to  be 
(as  there  was  evidence  from  which  the  jury  might  have  so  found) 
that  the  plaintiffs  obtained  possession  of  the  logs  in  the  first  instance 
by  trespassing  upon  the  land  of  some  third  party.  Therefore  the  only 
question  is  whether  bare  possession  of  property,  though  wrongfully 
obtained,  is  sufficient  title  to  enable  the  party  enjoying  it  to  maintain 
replevin  against  a  mere  stranger,  who  takes  it  from  him.  We  had 
supposed  that  this  was  settled  in  the  affirmative  as  long  ago,  at  least, 
as  the  early  case  of  Armory  v.  Delamirie,  I  Strange,  504,  so  often  cited 
on  that  point.  When  it  is  said  that  to  maintain  replevin  the  plain- 
tiff's possession  must  have  been  lawful,  it  means  merely  that  it  must 
have  been  lawful  as  against  the  person  who  deprived  him  of  it ;  and 
possession  is  good  title  against  all  the  world  except  those  having  a 
better  title.  Counsel  says  that  possession  only  raises  a  presumption 
of  title,  which,  however,  may  be  rebutted.  Rightly  understood,  this 
is  correct ;  but  counsel  misapplies  it.  One  who  takes  property  from 
the  possession  of  another  can  only  rebut  this  presumption  by  showing 
a  superior  title  in  himself,  or  in  some  way  connecting  himself  with 
one  who  has.  One  who  has  acquired  the  possession  of  property, 
whether  by  finding,  bailment,  or  by  mere  tort,  has  a  right  to  retain 
that  possession  as  against  a  mere  wrongdoer  who  is  a  stranger  to  the 
property.  Any  other  rule  would  lead  to  an  endless  series  of  unlaw- 
ful seizures  and  reprisals  in  every  case  where  property  had  once  passed 
out  of  the  possession  of  the  rightful  owner. 

Order   affirmed. 

(The  rule  that  in  actions  for  trespass  or  conversion  the  defendant  cannot 
set  up  the  jus  tertii  in  defense,  unless  he  connects  himself  with  such  title,  is 


CONVERSION  OP  PERSONAL  PROPERTY.  511 

upheld  by  Jeffries  v.  Railroad  Co.,  5  El.  &  Bl.  802;  Stonebridge  v.  Perkins,  141 
N.  Y.  1,  5,  35  N.  E.  980  [so  held  as  to  trespass  and  trover,  but  not  (by  reason 
of  a  New  York  statute)  as  to  replevin] ;  Stevens  v.  Gordon,  87  Me.  564,  83 
Atl.  27;  Shaw  v.  Kaler,  106  Mass.  448;  Eureka  Iron  Works  v.  Bresnahan, 
66  Mich.  489,  494,  33  N.  W.  834.  But  some  cases  are  to  the  contrary.  Rey- 
nolds v.  Fitzpatrick  [Mont]  72  Pac.  510 ;  Boyce  T.  Williams,  84  N.  C.  275,  37 
Am.  Rep.  618.) 


(7  Term  R.  9.) 

GORDON  v.  HARPER  (in  part). 
(Court  of  King's  Bench.     November  11,  1796.) 

1.  CONVERSION— RIGHT  TO  POSSESSION— WHO  MAY  MAINTAIN  TBOVEB. 

Trover  will  not  lie  for  the  conversion  of  personal  property  unless  at  the 
time  of  the  conversion  the  possession  or  right  to  the  immediate  possession 
was  in  plaintiff. 

2.  SAME— LEASED  PROPERTY. 

The  owner  of  personal  property  leased  to  another  cannot  maintain  tro- 
ver for  a  conversion  pending  the  demise. 

Case  Reserved  on  Verdict  Subject  to  Opinion  of  Court. 

Action  of  trover  by  Gordon  against  Harper  for  the  conversion  of 
household  goods  taken  by  Harper  as  sheriff,  and  sold  under  a  writ 
against  one  Barret  in  favor  of  one  Broomhead.  Barret  had  sold  the 
goods  to  plaintiff,  who  had  leased  them  to  one  Briscoe,  in  connection 
with  the  house  where  they  were  found,  and  they  were  taken  by  defend- 
ant from  Briscoe's  possession  before  the  expiration  of  his  lease.  The 
lease  had  not  expired  at  the  time  of  the  trial.  A  verdict  was  found 
for  plaintiff  subject  to  the  opinion  of  the  court  on  the  above  facts. 

ASHURST,  J.  I  have  always  understood  the  rule  of  law  to  be 
that,  in  order  to  maintain  trover,  the  plaintiff  must  have  a  right  of 
property  in  the  thing,  and  a  right  of  possession,  and  that,  unless  both 
these  rights  concur,  the  action  will  not  lie.  Now  here  it  is  admitted 
that  the  tenant  had  the  right  of  possession  during  the  continuance 
of  his  term,  and  consequently  one  of  the  requisites  is  wanting  to  the 
landlord's  right  of  action.  It  is  true  that  in  the  present  case  it  is 
not  very  probable  that  the  furniture  can  be  of  any  use  to  any  other 
than  the  actual  tenant  of  the  premises;  but,  supposing  the  things 
leased  had  been  manufacturing  engines,  there  is  no  reason  why  a 
creditor  seizing  them  under  an  execution  should  not  avail  himself  of 
the  beneficial  use  of  them  during  the  term. 

GROSE,  J.  The  only  question  is  whether  trover  will  He  where 
the  plaintiff  had  neither  the  actual  possession  of  the  goods  taken  at 
the  time  nor  the  right  of  possession.  The  common  form  of  pleading 
in  such"  an  action  is  decisive  against  him,  for  he  declares  that,  being 


512  LAW  OF  TORTS. 

possessed,  etc.,  he  lost  the  goods.  He  is  therefore  bound  to  show  ei- 
ther an  actual  or  virtual  possession.  If  he  had  a  right  to  the  pos- 
session, it  is  implied  by  law.  Where  goods  are  delivered  to  a  car- 
rier, the  owner  has  still  a  right  of  possession,  as  against  a  tort-feasor, 
and  the  carrier  is  no  more  than  his  servant.  But  here  it  is  clear  that 
the  plaintiff  had  no  right  of  possession,  and  he  would  be  a  trespasser 
if  he  took  the  goods  from  the  tenant.  Then,  by  what  authority  can 
he  recover  them  from  any  other  person  during  the  term?  It  is  laid 
down  in  some  of  the  books  (i  Bac.  Abr.  45  ;  5  Bac.  Abr.  257 ;  2  Com. 
Dig.  tit.  "Detinue,  D")  that  trover  lies  where  detinue  will  lie,  the  former 
having  in  modern  times  been  substituted  for  the  old  action  of  detinue. 
I  will  not  say  that  it  is  universally  true  that  the  one  action  may  be 
substituted  for  the  other,  because  the  authorities  referred  to  in  sup- 
port of  that  proposition  do  not  apply  to  that  extent ;  but  certainly 
it  may  be  said  to  be  a  good  criterion.  But  it  is  clear  in  this  case  that 
detinue  would  not  lie,  because  the  plaintiff  had  no  right  to  the  posses- 
sion of  the  specific  goods  at  the  time.  And,  if  not,  it  is  a  strong  ar- 
gument to  show  that  trover,  which  was  substituted  in  lieu  of  it,  can- 
not be  maintained  by  the  present  plaintiff.  Much  stress  has  been  laid 
on  what  was  said  in  Ward  v.  Macauley,  4  Term  R.  489 ;  but  the  only 
question  there  was  whether  trespass  would  lie  under  these  circumstan- 
ces, and  it  was  not  necessary  to  determine  how  far  trover  might  be 
maintained.  It  appears  now  very  clearly  upon  examining  that  point, 
that  trover  will  not  lie  in  any  case,  unless  the  property  converted  was 
in  the  actual  or  implied  rightful  possession  of  the  plaintiff.  In  this 
case  the  plaintiff  had  neither  the  one  nor  the  other  pending  the  demise, 
and,  when  that  is  determined,  perhaps  he  may  have  his  goods  restor- 
ed to  him  again  in  the  same  state  in  which  they  now  are,  when  it  will 
appear  that  he  has  not  sustained  that  damage  which  he  now  seeks  to 
lecover  in  this  action. 
Postea  to  defendant. 

(See  also  Stowell  v.  Otis,  71  N.  T.  36 ;  Hale  T.  Omaha  Nat.  Bk.,  49  N.  T. 
627,  632 ;  Raymond  Syndicate  v.  Guttentag,  177  Mass.  562,  59  N.  E.  446 ;  Clark 
v.  Draper,  19  N.  H.  419 ;  Winshlp  v.  Neale,  10  Gray,  382 ;  Castor  v.  McShaf- 
fery,  48  Pa.  437 ;  Bartlett  v.  Hoyt,  29  N.  H.  317 ;  Bowen  v.  Fenner,  40  Barb. 
383.  In  such  forms  of  bailment  as  depositum,  mandatum,  commodatum,  etc., 
where  the  bailor  is  entitled  to  reclaim  the  goods  from  the  bailee  at  any  time, 
either  bailor  or  bailee  may  sue  a  third  person  who  wrongfully  takes  the  goods, 
in  trespass  or  trover.  Marsden  v.  Cornell,  62  N.  Y.  215,  221 ;  Green  v.  C'arke, 
12  N.  Y.  343;  Nicholls  v.  Bastard,  2  C.  M.  &  R.  659;  Manders  v.  Williams.  4 
Ex.  339;  Vining  v.  Baker,  53  Me.  544;  Chamberlain  v.  West  [Minn.]  33  N.  W. 
114.) 


CONVERSION  OF  PERSONAL  PROPERTY.  513 


III.  CONVERSION  BY  JOINT  OWNER. 

(21  Pick.  559.) 

WELD  v.  OLIVER  (in  part). 

(Supreme  Judicial  Court  of  Massachusetts.     March  25,  1839.) 

CONVERSION  BY  TENANT  IN  COMMON. 

Where  one  tenant  in  common  of  personal  property  sells  and  delivers  the 
entire  property  as  exclusively  his  own,  it  amounts  to  a  conversion,  for 
which  his  co-tenant  can  maintain  trover. 

Case  reserved  upon  agreed  facts. 

Action  of  trover  by  William  F.  Weld  against  James  Oliver  for  an 
alleged  conversion  of  7,870  bushels  of  salt.  The  salt  was  owned  in 
equal  undivided  shares  by  plaintiff  and  one  Greene,  and  was  sold  tc 
defendant  by  Greene  in  payment  of  shares  of  corporate  stock  bought 
by  Greene.  Plaintiff,  discovering  the  sale,  forbade  defendant  dispos- 
ing of  the  salt,  but  defendant  thereafter  sold  it  as  his  own  in  small 
lots.  Plaintiff  contended  that  by  the  sale  by  Greene  plaintiff  and 
defendant  became  tenants  in  common  of  such  salt,  and  that  the  sale 
by  defendant  of  the  salt  as  exclusively  his  own  was  a  conversion,  and 
the  case  was  stated  for  the  opinion  of  the  court. 

DEWEY,  J.  The  principal  question  in  the  present  case  is  wheth- 
er an  action  of  trover  will  lie  by  one  tenant  in  common  of  personal 
chattels  against  his  co-tenant  upon  no  other  evidence  of  conversion 
by  him  than  a  sale  and  delivery  of  the  entire  property  as  exclusively 
his  own.  I  am  not  aware  that  this  question  has  been  distinctly  set- 
tled by  any  adjudication  of  this  court.  The  case  of  Melville  v.  Brown, 
15  Mass.  82,  which  has  sometimes  been  supposed  to  sanction  the  doc- 
trine that  such  a  sale  was  a  conversion  for  which  trover  would  lie, 
was  considered  by  the  court  as  maintainable  upon  principles  peculiar 
to  itself,  and  of  a  more  limited  character ;  it  being  a  case  of  an  abuse 
of  an  authority  in  law,  under  an  attachment  on  mesne  process,  and 
subsequent  sale  on  execution  by  a  sheriff.  The  elementary  books 
generally  state  the  rule  to  be  that  one  tenant  in  common  cannot  main- 
tain trover  against  his  co-tenant  unless  there  has  been  a  destruction 
of  the  property ;  and  in  some  of  them  it  is  expressly  affirmed  that  a 
sale  by  one  co-tenant  of  the  entire  property  will  not  amount  to  a  con- 
version. The  cases  cited  to  sustain  this  latter  position  are  very  lim- 
ited, and  not  of  so  decisive  a  character  as  to  put  this  point  at  rest. 
On  the  contrary,  the  question  may  be  considered  in  this  common- 
wealth as  an  open  one,  and  to  be  decided  upon  what  may  seem  to  be 
sound  principle. 

The  authority  of  the  few  English  cases  usually  cited  as  favoring  the 
doctrine  that  a  sale  in  such  cases  is  not  a  conversion  is  certainly  much 
CHASE  (2o  ED.) — 33 


514  LAW  OF  TORTS. 

weakened  by  the  case  of  Barton  v.  Williams,  5  Barn.  &  Aid.  395, 
where  it  seems  to  be  distinctly  stated  by  two  of  the  learned  judges  be- 
fore whom  the  cause  was  heard  that  a  sale  of  the  whole  property  by 
one  of  two  tenants  in  common  is  a  conversion.  The  case,  however,  pre- 
sented other  questions,  and,  in  the  final  disposition  of  it,  this  point 
does  not  seem  to  have  been  settled. 

Upon  recurring  to  the  origin  of  the  doctrine  so  frequently  stated, 
that  one  tenant  in  common  cannot  maintain  trover  against  his  co- 
tenant  unless  there  has  been  a  destruction  by  him  of  the  property  thus 
holden  in  common,  I  think  it  will  be  found  to  have  been  originally 
asserted  with  reference  to  the  right  of  one  tenant  in  common  to  sue 
his  co-tenant,  in  an  action  of  trover,  for  the  exclusive  use  and  posses- 
sion of  the  common  property,  and  the  denying  to  the  other  any  par- 
ticipation in  the  same ;  and,  when  thus  applied,  it  is  entirely  correct, 
upon  the  familiar  principle  that  the  possession  of  one  co-tenant  is  the 
possession  of  both,  and  he  who  has  the  present  possession  cannot  be 
ousted.  It  is  very  clear  that  one  tenant  in  common  cannot  maintain 
an  action  of  trover  against  his  co-tenant  for  the  mere  act  of  with- 
holding from  him  the  use  of  a  chattel,  the  rights  of  both  being  such 
that  he  who  has  the  possession  cannot  be  guilty  of  a  conversion  by 
retaining  it.  Nor  can  one  tenant  in  common  object  to  the  mere  sale 
by  the  other  of  the  interest  of  the  vendor  in  the  common  property, 
and  a  delivery  over  of  the  chattel  to  the  purchaser.  Such  a  right  re- 
sults from  the  nature  of  the  relation  between  the  parties,  and  to  this 
inconvenience  each  must  be  subject ;  the  mere  change  of  possession, 
under  such  circumstances,  being  no  conversion. 

But  the  question  arises  whether  this  be  not  the  limit  beyond  which, 
if  one  co-tenant  passes,  he  subjects  himself  to  an  action  by  the  other 
co-tenant  for  the  conversion  of  his  share  of  the  property.  The  or- 
dinary evidence  of  conversion  is  the  unlawful  taking  or  detention  of 
goods  from  the  possession  of  the  true  owner;  but  it  is  equally  true 
that  he  who  undertakes  to  dispose  of  my  goods  as  his  own  property 
thereby  subjects  himself  to  an  action  of  trover.  May  not  the  assump- 
tion of  property  in  and  a  sale  of  my  undivided  moiety  by  my  co-tenant 
be  equally  a  conversion  by  him  of  the  moiety  belonging  to  me,  as  the 
sale  by  a  stranger  of  an  article  in  which  I  had  the  entire  interest  be 
the  conversion  of  the  whole  property  by  the  stranger? 

The  objection  to  holding  a  sale  by  one  tenant  in  common  of  the 
interest  of  his  co-tenant  to  be  a  conversion,  as  stated  in  Bac.  Abr. 
"Trover,"  is  that  such  a  sale  only  passes  the  interest  of  the  vendor, 
and  the  interest  of  the  other  co-tenant  still  remains  in  common  with 
the  purchaser,  and  therefore  there  can  be  no  conversion  by  the  act 
of  sale.  But  the  fact  that  the  original,  owner  is  not  divested  of  his 
legal  property  by  force  of  the  sale  is  equally  true  in  the  ordinary  cases 
of  the  conversion  of  the  whole  property  by  a  stranger ;  but  this  is  not 
deemed  a  bar  to  an  action  of  trover,  if  the  owner  elects  that  mode  of 


CONVERSION  OP  PERSONAL  PROPERTY.  515 

redress,  rather  than  to  reclaim  the  specific  property.  To  constitute 
a  conversion  of  the  whole  property  by  a  stranger  requires  only  an  as- 
sumption of  authority  over,  and  an  actual  sale  of,  the  property,  and 
it  is  not  necessary  that  the  legal  interest  should  pass  by  the  sale. 

We  do  not  perceive  any  sufficient  reason  for  taking  a  distinction 
between  the  cases  of  an  unlawful  sale  of  a  moiety  or  the  entire  es- 
tate ;  and  it  seems  to  us,  in  either  case,  the  assuming  an  authority  to 
sell,  and  the  making  the  actual  sale,  of  the  interest  of  another,  under 
a  claim  of  title  in  the  vendor,  may  properly  be  taken  to  be  a  conver- 
sion for  which  an  action  of  trover  will  lie.  We  are  sustained  in  this 
opinion  by  an  early  decision  of  the  supreme  court  of  the  state  of  New 
York  in  the  case  of  Wilson  v.  Reed,  3  Johns.  175 ;  and  the  same  prin- 
ciple has  also  been  subsequently  recognized  in  the  cases  of  Hyde  v. 
Stone,  9  Cow.  230,  18  Am.  Dec.  501,  and  Gilbert  v.  Dickerson,  7  Wend. 
449,  22  Am.  Dec.  592. 

Judgment  for  plaintiff. 

(See  also  Dyckman  v.  Valiente,  42  N.  Y.  549 ;  Gates  v.  Bowers,  169  N.  Y.  14, 
61  N.  E.  993,  88  Am.  St.  Rep.  530;  Turtle  v.  Campbell,  74  Mich.  652,  42  N.  W. 
384,  16  Am.  St.  Rep.  652;  Wheeler  v.  Wheeler,  33  Me.  347;  White  v.  Phelps, 
12  N.  H.  382;  Browning  v.  Cover,  108  Pa.  595;  Lewis  v.  Clark,  59  Vt  363,  8 
Atl.  158;  Davis  v.  Lottich,  46  N.  Y.  395;  Lobdell  v.  Stowell,  51  N.  Y.  70.) 


IV.  DEMAND  AND   REFUSAL  AS   EVIDENCE  OF 
CONVERSION. 

(92  111.  218.) 

HOWITT  v.  ESTELLE  (in  part). 
(Supreme  Court  of  Illinois.     June  Term,  1879.) 

CONVERSION— NECESSITY  FOB  DEMAND  AND  REFUSAL. 

A  wrongful  taking  or  a  wrongful  sale  of  personal  property  constitutes 
an  actual  conversion,  and,  when  shown,  dispenses  with  a  demand ;  a  de- 
mand and  refusal  being  necessary  as  evidence  of  a  conversion  only  when 
a  party  comes  into  possession  lawfully  and  retains  the  property. 

Writ  of  Error  to  the  Circuit  Court  of  Clay  County;    the  Hon. 
James  C.  Allen,  Judge,  presiding. 

Mr.  Chief  Justice  WALKER  delivered  the  opinion  of  the  Court: 
Anestasia  Estelle  brought  an  action  before  a  justice  of  the  peace 

against  Sarah  E.  Howitt  to  recover  the  value  of  a  sewing  machine. 

On  a  trial  before  the  justice,  plaintiff  recovered  a  judgment,  and 

also  on  a  trial  on  an  appeal  to  the  circuit  court. 

It  is  objected  that  no  demand  for  the  machine  was  proved.     None 

was  required,  as  defendant  testified  she  had  sold  it.     This,  then,  was 


616  LAW   OF   TORTS. 

an  actual  conversion  of  the  property,  which  rendered  a  demand  un- 
necessary. A  demand  and  refusal  are  only  evidence  of  a  conversion, 
and  are  not  required  where  an  actual  conversion  is  proved.  Chitty's 
PI.  vol.  I,  p.  177  (6th  Am.  Ed.).  A  wrongful  taking  or  a  wrongful 
sale  constitutes  an  actual  conversion,  and  when  shown  dispenses  with 
a  demand.  But  where  a  party  comes  lawfully  into  possession  and  re- 
tains the  property,  to  put  him  in  the  wrong  a  demand  and  refusal  are 
necessary. 

Perceiving  no  error  in  the  record  for  which  the  judgment  should 
be  reversed,  it  is  affirmed. 

Judgment  affirmed. 

(See  also  as  to  when  a  demand  is  necessary,  Newman  v.  Je-nne.  47  Me.  520 ; 
Baker  v.  Lothrop,  155  Mass.  376,  29  N.  E.  643;  Temple  Co.  v.  Penn  Life  Ins.  Co. 
[N.  J.  Sup.]  54  Atl.  295;  Pease  v.  Smith,  61  N.  Y.  477,  481,  reported,  ante.  p. 
121;  Converse  v.  Sickles,  146  N.  Y.  200,  40  N.  E.  777,  48  Am.  St  Rep.  790; 
Brown  v.  Cook,  9  Johns.  361 ;  Cooley  on  Torts  [2d  Ed.]  530.  When  the  facts 
establish  an  actual  conversion  without  a  demand,  no  demand  is  needed.  Id. ; 
State  v.  Patten,  49  Me.  383;  Fisk  v.  Ewen,  46  N.  H.  173;  Gross  v.  Scheel  [Neb.] 
93  N.  W.  418.) 


(9  Allen,  171,  85  Am.  Dec.  749.) 

GILMORE  v.  NEWTON. 
(Supreme  Judicial  Court  of  Massachusetts.    Norfolk.    October  Term,  1864.) 

CONVERSION — PTTBCHASE  FBOM  ONE  HAVING  NO  RIGHT  TO  SELL. 

Purchasing  a  horse  in  good  faith  from  one  who  had  no  right  to  sell  him, 
and  subsequently  exercising  dominion  over  him  by  letting  him  to  another 
person,  will  amount  to  a  conversion,  and  no  demand  by  the  owner  is 
necessary  before  commencing  an  action  therefor. 

Tort  for  the  conversion  of  a  horse. 

At  the  trial  in  the  superior  court,  before  Putnam,  J.,  there  was  evi- 
dence tending  to  show  that  the  plaintiff,  being  the  owner  of  the  horse 
in  question,  let  him  to  one  Barrows,  who  subsequently  exchanged  him 
with  the  defendant  for  another  horse,  and  that  the  defendant  after- 
wards let  him  to  a  person  who  ran  away  with  him,  and  neither  the 
person  nor  the  horse  has  since  been  heard  of.  The  defendant  sup- 
posed his  title  to  the  horse  to  be  perfect,  and  no  demand  was  made 
by  the  plaintiff  before  commencing  this  action. 

The  jury  returned  a  verdict  for  the  plaintiff,  under  instructions 
authorizing  them  to  do  so,  and  the  defendant  alleged  exceptions. 

METCALF,  J.  We  cannot  sustain  these  exceptions.  The  author- 
ities are  decisive  that  the  defendant  converted  to  his  own  use  the 
plaintiff's  horse  by  taking  an  assignment  and  possession  of  him  from 
a  person  who  had  no  authority  to  dispose  of  him,  and  subsequently 
exercising  dominion  over  him.  Stanley  v.  Gaylord,  I  Cush.  546,  48 


CONVERSION    OF    PERSON AL    1'UOPERTY.  517 

Am.  Dec.  643,  and  cases  there  cited ;  Riley  v.  Boston  Water  Power 
Co.,  ii  Cush.  ii ;  Williams  v.  Merle,  n  Wend.  80,  25  Am.  Dec.  604; 
Riford  v.  Montgomery,  7  Vt.  418;  Courtis  v.  Cane,  32  Vt.  232,  76 
Am.  Dec.  174.  In  McCombie  v.  Davies,  6  East,  540,  Lord  Ellenbor- 
ough  said :  "According  to  Lord  Holt,  in  Baldwin  v.  Cole,  6  Mod. 
212,  the  very  assuming  to  one's  self  the  property  and  right  of  dispos- 
ing of  another  man's  goods  is  a  conversion ;  and  certainly  a  man  is 
guilty  of  a  conversion  who  takes  my  property  by  assignment  from 
another,  who  has  no  authority  to  dispose  of  it." 

The  defendant  admits  that  although  he  had  no  notice  that  the  horse 
was  stolen,  yet  he  acquired  no  title  to  him.  But  he  objects  to  the 
maintenance  of  this  action,  because  no  demand  of  a  delivery  of  the 
horse  to  the  plaintiff  was  made  and  refused  before  the  action  was  com- 
menced. And  he  cites,  among  other  books,  2  Greenl.  Ev.  §  642,  where 
it  is  said  that  "a  mere  purchase  of  goods,  in  good  faith,  from  one 
who  had  no  right  to  sell  them,  is  not  a  conversion  of  them  against  the 
lawful  owner,  until  his  title  has  been  made  known  and  resisted."  This 
position,  though  not  supported  by  the  cases  referred  to  by  Mr.  Green- 
leaf,  may  be  sustained  by  other  cases.  And  not  only  are  there  deci- 
sions that  "a  mere  purchase"  of  property,  without  taking  possession 
of  it,  is  not  a  conversion  of  it,  but  also  decisions  that  a  purchase,  re- 
ceiving a  pledge,  or  other  bailment,  etc.,  of  property  from  one  who 
had  no  right  to  dispose  of  it,  and  taking  possession  thereof,  without 
any  further  act  of  dominion  over  it,  does  not  always  constitute  a  con- 
version of  it.  But  we  need  not  discuss  this  class  of  cases,  for  no  one 
of  them  sustains  the  defendant's  objection ;  for  his  is  a  case  not  only 
of  receiving  an  assignment  and  taking  possession  of  the  horse,  but 
also  of  afterwards  exercising  dominion  over  him  by  bailing  him  to  a 
third  person.  See  Leonard  v.  Tidd,  3  Mete.  6 ;  Fernald  v.  Chase,  37 
Me.  292 ;  Billiter  v.  Young,  6  El.  &  Bl.  41. 

Demand  and  refusal  are  never  necessary  as  evidence  of  conversion, 
except  when  the  other  acts  of  the  defendant  are  not  sufficient  to 
prove  it ;  nor  are  they  evidence  of  it,  when,  as  in  this  case,  it  was  not 
in  the  power  of  the  defendant  to  deliver  the  property  when  demanded. 
Besides,  after  property  has  been  converted,  a  delivery  of  it  to  the 
owner,  on  demand  by  him,  will  not  bar  or  defeat  an  action  for  the 
conversion,  but  will  only  mitigate  damages.  A  demand  on  the  de- 
fendant for  the  horse  was  therefore  needless  for  the  plaintiff,  and 
would  have  been  useless  to  the  defendant. 

Exceptions  overruled. 

(It  Is  held  in  several  states  that  a  purchaser  In  good  faith  of  a  chattel  from 
one  who  has  no  title  to  it  is  liable  for  conversion,  even  though  he  merely 
retains  the  chattel  in  his  possession  and  does  not  transfer  it.  Prime  v.  Cobb, 
G3  Me.  200;  Hyde  v.  Noble,  13  N.  H.  494,  38  Am.  Dec.  508;  Cooper  v.  Newman, 
45  N.  H.  339 ;  Stanley  v.  Gay  lord,  1  Cush.  530,  48  Am.  Dec.  643 ;  Chapman  v. 
Cole,  12  Gray,  141,  71  Am.  Dec.  739;  Bucklin  v.  Beals,  38  Vt.  653.  Thus,  it 
is  said  to  be  settled  law  in  Massachusetts  that  "when  a  thief  sells  chattels, 


518  LAW  OP  TORTS. 

even  to  an  honest  purchaser,  the  owner  may  maintain  an  action  for  the  prop- 
erty without  a  previous  demand."  Heckle  v.  Lurvey,  101  Mass.  344,  3  Am. 
Rep.  366.  In  New  York,  however,  the  bona  fide  purchaser  is  not  liable,  under 
such  circumstances,  until  after  demand  and  refusal.  Gillet  v.  Roberts,  57  N. 
Y,  28;  Pease  v.  Smith,  61  N.  Y.  477,  480;  Millspaugh  v.  Mitchell,  8  Barb.  333; 
Rawley  v.  Brown,  18  Hun,  456;  S.  P.  Conner  v.  Comstock,  17  Ind.  90.) 


(48  N.  Y.  492,  8  Am.  Rep.  564.) 

SALT  SPRINGS  NAT.  BANK  v.  WHEELER  (In  part). 
(Court  of  Appeals  of  New  York.     May  Term,  1872.) 

1.  CONVERSION — ACCIDENTAL  Loss  OB  DESTRUCTION  OF  PROPERTY. 

The  accidental  loss  or  destruction  of  personal  property  by  one  lawfully 
in  its  possession  is  not  a  conversion  thereof. 

2.  SAME— DEMAND  AND  REFUSAL. 

Demand  and  refusal  of  bills  of  exchange  do  not  establish  a  conversion 
of  them  where  they  have  previously  been  accidentally  lost  or  destroyed. 
The  failure  to  deliver  that  which  is  not  in  being  and  cannot  be  delivered 
furnishes  no  evidence  of  an  appropriation  by  the  defendant 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme  Court 
in  the  Fifth  Judicial  District,  affirming  a  judgment  in  favor  of  the 
plaintiff,  entered  upon  the  decision  of  the  court  at  circuit,  upon  trial 
without  a  jury. 

Certain  bills  of  exchange,  drawn  on  defendant  and  payable  to  plain- 
tiff, were  sent  to  defendant  for  acceptance  and  payment.  The  judge 
found,  on  trial  of  this  action  of  trover,  that  the  plaintiff  demanded  the 
bills  of  defendant,  who  refused  to  deliver  them ;  that  the  bills  were 
lost  or  destroyed  through  the  negligence  of  the  defendant,  and  that 
the  defendant  had  converted  them ;  and,  as  a  conclusion  of  law,  that 
the  plaintiff  was  entitled  to  recover  the  amount  of  the  bills,  with  inter- 
est from  the  demand. 

HUNT,  C.  The  advantage  of  an  action  in  trover,  rather  than  an 
action  in  assumpsit,  in  the  collection  of  a  debt,  is  apparent.  It  gives 
a  right  to  hold  to  bail  during  the  pendency  of  the  action,  and  a  right 
of  imprisonment  upon  an  execution,  in  addition  to  the  usual  resort  to 
the  property  of  the  defendant.  To  procure  this  advantage  the  plain- 
tiffs have  passed  by  their  plain  and  obvious  remedy  of  an  action 
against  the  defendant  for  a  breach  of  contract,  and  have  brought  an 
action  of  trover.  The  question  is  whether  they  can  sustain  it. 

During  the  autumn  of  1865  the  defendant  being  indebted  to  the  firm 
of  Jaycox  &  Green  in  the  sum  of  $1,012.18,  that  firm  drew  upon  him 
for  the  amount  in  three  several  bills  of  exchange,  at  one  month  each. 
These  bills  were  discounted  by  the  plaintiff  at  about  the  time  of  their 
several  dates,  and  had  all  matured  before  the  3Oth  day  of  December. 


CONVERSION  OF  PERSONAL  PROPERTY.  519 

On  that  day  one  of  them  had  been  due  two  and  a  half  months,  the 
second  nearly  two  months,  the  last  a  few  days.  These  drafts  were 
severally  transmitted  by  the  plaintiff  to  the  defendant  for  acceptance 
and  payment,  he  being  engaged  in  the  business  of  a  banker  also.  Be- 
fore the  3Oth  of  December  the  defendant  failed  and  made  an  assign- 
ment. On  that  day  the  plaintiff's  agent  demanded  of  him  the  drafts 
in  question.  He  replied  that  he  thought  he  had  returned  them  to  the 
plaintiff.  Upon  reflection  and  examination  he  stated  that  he  could  not 
find  them,  and  that  he  might  have  burned  them  up  in  destroying  other 
papers  that  he  considered  of  no  value.  It  was  not  pretended  by  any 
witness  that  the  defendant  asserted  any  title  to  the  bills  or  claimed  any 
right  to  hold  or  retain  them.  There  was  no  reason  to  doubt  the  ac- 
curacy of  the  defendant's  statement.  The  judge  finds  that  they  were 
lost,  mislaid,  or  destroyed  through  the  negligence  of  the  defendant. 
He  also  finds  that  he  "converted  the  same." 

To  authorize  the  action  of  trover,  two  things  are  necessary:  (i) 
Property  in  the  plaintiff  with  a  right  of  possession ;  and  (2)  a  con- 
version by  the  defendant  of  the  thing  to  his  own  use.  This  conver- 
sion consists  of  the  appropriation  of  the  thing  to  the  party's  own  use 
and  beneficial  enjoyment,  or  in  its  destruction,  or  in  exercising  do- 
minion over  it  in  defiance  of  the  plaintiff's  right,  or  in  withholding  it 
under  a  claim  of  title.  2  Greenl.  Ev.  §  642,  and  cases  cited.  The  de- 
struction referred  to  as  constituting  a  conversion  is  an  intentional 
destruction,  not  an  accidental  act.  Thus,  a  misdelivery  of  goods  by 
a  bailee  is  a  conversion.  Id.,  and  Deming  v.  Barclay,  2  B.  &  A.  702; 
Seyd  v.  Hay,  4  T.  R.  260.  But  the  accidental  loss  by  the  carrier  is  not. 
Ross  v.  Johns,  5  Burr.  2825 ;  Dwight  v.  Brewster,  I  Pick.  50,  n  Am. 
Dec.  133.  A  wrongful  sale  is  a  conversion,  but  a  purchase  in  good 
faith  is  not  in  the  first  instance  a  conversion.  The  accidental  loss  or 
destruction  of  an  article  by  one  lawfully  in  its  possession  has  never 
been  held  to  be  a  conversion.  Bromley  v.  Coxwell,  2  B.  &  P.  438 ; 
Cairns  v.  Bleecker,  12  J.  R.  300;  Jervis  v.  Jolliffe,  6. Id.  9. 

In  LaPlace  v.  Aupoix  (i  Johns.  Cas.  407),  cited  to  the  contrary,  it 
appeared  that  the  goods  had  been  placed  in  the  defendant's  possession, 
and  had  been  sold  by  him,  contrary  to  the  orders  of  the  owner.  Their 
subsequent  loss  on  the  voyage  on  which  they  were  shipped  was  held 
to  make  no  difference.  The  defendant  was  guilty  of  a  direct  act  of 
conversion,  and  the  action  was  well  brought. 

Demand  and  refusal  do  not  establish  a  conversion  to  the  defendant's 
own  use,  where,  as  in  this  case,  it  appears  that  at  the  time  of  the 
demand  the  bills  were  not  in  existence.  They  had  been  previously 
and  accidentally  destroyed.  The  failure  to  deliver  that  which  is  not 
in  being  and  cannot  be  delivered  furnishes  no  evidence  of  an  appropria- 
tion by  the  defendant.  Murray  v.  Burling  (10  Johns.  172)  and  Decker 
v.  Mathews  (12  N.  Y.  313)  are  cases  where  the  party  sued  had  wrong- 
fully transferred  the  bill,  and  received  and  applied  the  proceed*  to  his 


520  LAW  OF  TORTS. 

own  use.  They  furnish  no  authority  upon  the  case  before  us,  which 
is  one  of  an  accidental  loss  or  destruction  of  the  bill,  no  money  being 
received  upon  it.  Upon  all  of  the  authorities  I  have  been  able  to 
consult,  my  judgment  is  that  there  was  no  evidence  of  any  conversion 
of  these  bills.  There  was  never  any  denial  of  the  plaintiff's  property ; 
there  was  no  claim  of  property  in  the  defendant ;  there  is  no  evidence 
of  a  voluntary  or  intentional  destruction  of  them. 

I  am  of  the  opinion  that  the  judgment  should  be  reversed  and  a  new 
trial  ordered,  costs  to  abide  the  event.  All  concur. 

Judgment  reversed. 


(69  N.  H.  139,  44  Atl.  910.) 

HETT  v.  BOSTON  &  M.  R.  R. 

(Supreme  Court  of  New  Hampshire.    Rockingham.    July  30,  1897.) 

1.  TROVER  AND  CONVERSION— REFUSAL  TO  DELIVER. 

Refusal  to  deliver  property  to  the  owner  on  his  demand  Is  merely  evi- 
dence of  conversion,  and  is  open  to  explanation. 

2.  SAME— ATTACHMENT. 

The  refusal  by  a  railroad  company  to  deliver  goods  to  the  owner  after 
they  had  been  attached  as  the  property  of  another  did  not  constitute  a 
conversion,  where  the  company  disclaimed  dominion  over  them  by  inform- 
ing him  that  the  goods  were  not  in  its  possession,  but  in  the  custody  of 
the  law. 

3.  SAME — QUALIFIED  REFUSAL. 

If  there  is  a  reasonable  doubt  of  the  demandant's  right  to  the  pos- 
session of  the  property  demanded,  a  refusal  to  deliver  it  until  a  reason- 
able opportunity  is  had  to  ascertain  his  right  is  not  sufficient  evidence 
of  a  conversion.  Thus,  where  a  station  agent  had  reasonable  doubts  as 
to  whether  a  charge  for  the  detention  of  a  car  containing  plaintiff's  goods 
was  lawful,  and  as  to  whether  the  railroad  company  would  insist  on 
payment,  his  refusal  to  deliver  the  goods  to  the  owner  until  he  could 
communicate  with  the  company  and  obtain  instructions  did  not  constitute 
a  conversion. 

• 

Action  of  trover  by  Valentine  A.  Hett  against  the  Boston  and 
Maine  Railroad  to  recover  property  of  plaintiff  delivered  to  defendant 
for  transportation  to  plaintiff.  After  the  formal  surrender  of  the 
goods  to  plaintiff,  while  the  same  were  still  in  the  car,  the  goods  were 
attached.  Plaintiff  was  informed  of  the  attachment,  and  thereafter 
demanded  the  property  of  defendant's  agents,  who  refused  to  deliver 
the  same  except  on  payment  of  the  charges  for  freight  and  an  addi- 
tional charge  for  detention  of  the  car  while  under  attachment.  Plain- 
tiff refused  to  pay  the. sum  demanded  for  detention  of  the  car,  and 
the  agent  refused  to  deliver  the  goods  until  he  could  learn  from  the 
company's  headquarters  whether  the  company  would  insist  upon  the 
payment  of  such  charge  for  detention.  This  action  was  thereupon 


CONVERSION  OF  PERSONAL  PROPERTY.  521 

brought,  and  on  the  following  day  the  agent  informed  plaintiff  that 
the  item  for  detention  of  the  car  was  to  be  omitted.  Judgment  for 
defendants. 

CARPENTER,  C.  J.  "To  constitute  a  conversion,  there  must  be 
some  exercise  of  dominion  over  the  property  in  repudiation  of,  or  in- 
consistent with,  the  owner's  rights."  Evans  v.  Mason,  64  N.  H.  98, 
5  Atl.  766 ;  Baker  v.  Beers,  64  N.  H.  102,  6  Atl.  35.  A  refusal  to  de- 
liver property  to  the  owner  upon  his  demand  is  not  of  itself  a  conver- 
sion. It  is  evidence  tending  to  show  a  conversion,  but,  like  other  in- 
conclusive acts,  is  open  to  explanation.  It  is  a  sufficient  answer  that 
it  is  not  in  the  power  of  the  defendant  to  comply  with  the  demand. 
Johnson  v.  Couillard,  4  Allen  (Mass.)  446.  When  the  plaintiff  made 
the  demand  upon  the  defendants  at  Nashua,  the  property  was  not  in 
their  possession.  By  the  attachment  it  passed  into  the  custody  of  the 
law.  Verrall  v.  Robinson,  2  Cromp.  M.  &  R.  495 ;  Stiles  v.  Davis, 
i  Black,  101,  17  L.  Ed.  33;  Osgood  v.  Carver,  43  Conn.  24,  30; 
Fletcher  v.  Fletcher,  7  N.  H.  452,  28  Am.  Dec.  359.  It  was  as  effect- 
ually out  of  their  possession  and  beyond  their  control  as  it  could 
have  been  if  the  sheriff  had  removed  it  from  the  car  and  carried  it 
away.  They  could  not  lawfully  prevent  the  officer  from  taking  it,  nor 
retake  it  from  his  possession.  State  v.  Fifield,  18  N.  H.  34;  State 
v.  Richardson,  38  N.  H.  208,  75  Am.  Dec.  173.  Instead  of  asserting, 
they  disclaimed,  any  dominion  over  the  property,  by  informing  the 
plaintiff  that  it  was  not  in  their  possession,  but  in  the  custody  of  the 
law. 

The  refusal  of  the  defendants'  station  agent  at  Portsmouth  to  de- 
liver the  goods  unless  the  plaintiff  would  pay  or  promise  to  pay  the 
charge  of  $8  for  the  detention  of  the  car  at  Nashua  presents  a  differ- 
ent question.  It  is  not  necessary  to  determine  whether  the  plaintiff 
was  liable  to  the  defendants  for  that  charge.  It  may  be  assumed  that 
he  was  not.  The  agent  informed  the  plaintiff  that  he  had  no  author- 
ity to  deliver  the  property  without  payment  of  the  $8,  but  offered  to 
deliver  it  on  payment  of  that  sum  (to  be  refunded  if  his  employers 
should  find  the  charge  unwarranted  or  remit  it),  or  upon  a  promise 
to  pay  in  case  they  should  not  remit  it,  and,  neither  of  these  proposi- 
tions being  accepted,  declined  to  deliver  the  goods  until  he  could  com- 
municate with  the  defendants  and  obtain  instructions.  If  there  is  a 
reasonable  doubt  of  the  demandant's  right  to  the  possession  of  the 
property,  a  refusal  to  deliver  it  until  a  reasonable  opportunity  is  had 
to  ascertain  his  right  is  not  sufficient  evidence  of  a  conversion.  In 
such  a  case  the  law  does  not  require  one  to  act  on  the  instant,  and 
either  comply  with  or  deny  the  demand  at  his  peril.  Robinson  v. 
Burleigh,  5  N.  H.  225 ;  Fletcher  v.  Fletcher,  7  N.  H.  452,  28  Am. 
Dec.  359;  Sargent  v.  Gile,  8  N.  H.  325,  331;  Vaughan  v.  Watt,  6 
Mees.  &  W.  492 ;  Hollins  v.  Fowler,  L.  R.  7  H.  L.  757,  766.  It  is 


522  LAW  OF  TORTS. 

immaterial  on  what  particular  point,  material  to  the  justice  of  the  de- 
mand, the  doubt  exists.  It  may  arise  upon  the  question  of  lien  by  the 
holder,  or  the  amount  of  the  lien,  as  well  as  upon  the  identity  or  au- 
thority of  the  person  making  the  demand.  Where  the  facts  are  un- 
disputed, and  the  doubt  is  upon  a  question  of  law,  a  refusal  to  deliver 
until  the  advice  of  counsel  can  be  obtained  may  be  considered  as  the 
result  of  a  reasonable  hesitation  in  a  doubtful  matter.  Gushing  v. 
Breck,  10  N.  H.  in,  116;  Eastman  v.  Association,  65  N.  H.  176,  18 
Atl.  745,  5  L.  R.  A.  712,  23  Am.  St.  Rep.  29.  Upon  the  facts  stated, 
it  could  not  be  found  that  the  station  agent's  doubt  whether  the  charge 
for  the  detention  of  the  car  was  lawful,  and  whether  the  defendants 
would  insist  upon  or  waive  its  payment,  was  not  a  reasonable. doubt ; 
and  his  refusal  to  deliver  the  property  until  he  could  obtain  the  de- 
fendants' instructions  was  not  sufficient  evidence  of  a  conversion. 
The  question  whether  the  time  required  for,  or  occupied  in,  procuring 
the  instructions,  was  reasonable  (Sargent  v.  Gile,  8  N.  H.  325,  331), 
does  not  arise,  because  the  plaintiff  brought  his  action  immediately 
after  the  demand.  Whether  the  same  result  might  be  reached  upon 
the  ground  that  the  plaintiff's  demand  upon  the  station  agent,  who  he 
knew  had  no  authority  to  comply  with  it,  was  not  a  demand  upon  the 
defendants  (Pothonier  v.  Dawson,  Holt,  N.  P.  383 ;  3  Starkie,  Ev. 
1500;  Poll.  Torts,  291 ;  Storm  v.  Livingston,  6  Johns.  44;  Mount  v. 
Derick,  5  Hill  (N.  Y.)  455 ;  Goodwin  v.  Wertheimer,  99  N.  Y.  149, 
I  N.  E.  404),  is  a  question  not  considered.  Judgment  for  the  de- 
fendants. 

BLODGETT,  J.,  did  not  sit.     The  others  concurred. 

(It  is  a  general  rule  that  demand  and  refusal  are  not  sufficient  evidence  of 
a  conversion,  when  it  appears  that  the  property  was  not  at  the  time  in  the 
possession  of  the  person  on  whom  the  demand  was  made.  Dearbourn  v. 
Union  Nat.  Bank,  58  Me.  273;  Williamson  v.  Russell,  39  Conn.  413;  Canning 
v.  Owen,  22  R.  I.  624,  48  Atl.  1033,  84  Am.  St.  Rep.  858 ;  Magnin  v.  Dinsmore, 

70  N.  Y.  410,  26  Am.  Rep.  608. 

That  a  qualified  refusal,  if  reasonable  under  the  circumstances,  will  not 
establish  a  conversion,  see  McEntee  v.  New  Jersey  Steamboat  Co.,  45  N.  Y. 
34,  6  Am.  Rep.  28;  Carroll  v.  Mix,  51  Barb.  212;  Stahl  v.  Boston  &  M.  R.  Co., 

71  N.  H.  57,  51  Atl.  176;    Singer  Mfg.  Co.  v.  King,  14  R.  I.  511;    Flannery  v. 
Brewer,  66  Mich.  509,  33  N.  W.  522;   Butler  v.  Jones,  80  Ala.  436,  2  South.  300. 
But  an  absolute  refusal  in  such  cases  will  show  a  conversion.    Wykoff  v. 
Stevenson,  46  N.  J.  Law,  326.) 


CONVERSION    OF    PERSONAL    PROPERTY  523 

When  title  passes  in  an  action  of  trover. 

(161  Mass.  473,  37  N.  E.  760,  25  L.  R.  A.  42,  42  Am.  St.  Rep.  424.) 

MILLER  v.  HYDE  (in  part). 
(Supreme  Judicial  Court  of  Massachusetts.     Middlesex     June  19,  1894.) 

CONVERSION — TROVER — WHEN  TITLE  PASSES. 

Although  it  appears  that  formerly,  when  ai.  action  of  trover  was» 
brought  and  the  plaintiff  recovered  judgment,  title  to  the  chattel  was 
transferred  to  the  defendant  upon  the  entry  of  judgment,  it  is  now  the 
general  rule  that  title  remains  in  the  plaintiff  until  he  has  received 
actual  satisfaction.  Hence,  if  the  judgment  against  the  defendant  is  not 
satisfied,  the  plaintiff,  still  having  title,  can  maintain  replevin  for  the 
chattel  against  any  person  who  has  obtained  possession  of  it  from  the 
defendant 

Appeal  from  Superior  Court,  Middlesex  County. 

Replevin  by  Louisa  A.  Miller,  administratrix  of  the  estate  of  Her- 
bert W.  Miller,  deceased,  against  E.  A.  Hyde,  for  the  possession  of 
a  horse.  Miller  in  his  lifetime  bought  the  horse  through  his  agent, 
George  Bryden,  who  kept  it  for  Miller  until  the  latter's  death  in  Sep- 
tember, 1890.  After  her  appointment  as  administratrix,  in  November, 

1890,  plaintiff  made  a  demand  upon  Bryden  for  the  horse,  but  he, 
claiming  a  half  interest  in  the  animal,  refused  to  deliver  it.     In  March, 

1891,  Bryden  sold  the  horse  as  his  own  property  to  Joseph  C.  Daven- 
port and  Ada  L.  Hyde.     Afterwards,  the  horse  being  in  the  possession 
of  Davenport  and  two  other  persons,  the  plaintiff  sued  these  three  and 
Bryden  to  recover  damages  for  the  conversion  of  the  animal,  and  at- 
tached it  upon  mesne  process.      She  recovered  judgment  against  Bryden 
only,  who  was  worthless  and  without  property.     Execution  against 
him  was  taken  out  on  such  judgment  by  plaintiff    and  levied  on  the 
horse,  which,  however,  after  the  levy,  was  taken  from  the  sheriff  on 
a  writ  of  replevin  in  favor  of  Davenport.     Davenport  took  possession 
of  the  horse,  and  later  entrusted  him  to  defendant  Hyde.     While  in 
Hyde's  possession  the  horse  was  replevied  in  the  present  action.     The 
judgment  against  Bryden  in  favor  of  plaintiff  has  not  been  satisfied. 
From  a  judgment  for  defendant,  plaintiff  appeals.     Judgment  set  aside, 
and  judgment  for  plaintiff  ordered. 

BARKER,  J.  The  plaintiff  may  maintain  replevin  if  she  is  the  own- 
er of  the  horse,  and  if  she  is  not  estopped  from  asserting  her  owner- 
ship against  the  defendant.  As  administratrix  of  her  husband's  es- 
tate, she  was  the  owner  when  she  brought  trover  in  Connecticut 
against  Bryden,  the  bailee  who  had  wrongfully  usurped  dominion  and 
sold  and  delivered  the  horse  to  Davenport.  As  the  horse  was  in  Con- 
necticut and  the  action  of  trover  was  in  the  courts  of  that  state,  the 
effect  of  the  suit  upon  her  title  would  be  determined  by  the  law  of 


524  LAW  OF  TORTS. 

the  forum.  But  as  the  law  of  Connecticut  is  not  stated  as  an  agreed 
fact,  we  must  apply  our  own.  Whether  a  plaintiff's  title  to  the  chat- 
tel is  transferred  upon  the  entry  in  his  favor  of  judgment  in  trover 
has  not  been  decided  by  this  court.  Assuming  that,  in  early  times, 
title  to  the  chattel  was  transferred  to  the  defendant  upon  the  entry  of 
judgment  for  the  plaintiff  in  trover,  at  present  a  different  doctrine  is 
generally  applied,  and  it  is  now  commonly  held  that  title  is  not  trans- 
ferred by  the  entry  of  judgment,  but  remains  in  the  plaintiff  until  he 
has  received  actual  satisfaction.  See  Atwater  v.  Tupper,  45  Conn. 
144,  29  Am.  Rep.  674 ;  Turner  v.  Brock,  6  Heisk.  50 ;  Lovejoy  v. 
Murray,  3  Wall.  I,  18  L.  Ed.  129;  Ex  parte  Drake,  5  Ch.  Div.  866; 
Brinsmead  v.  Harrison,  L.  R.  7  C.  P.  547 ;  I  Greenl.  Ev.  §  533,  and 
note.  And  the  law  has  been  commonly  so  administered  by  our  own 
trial  courts.  We  think  this  doctrine  better  calculated  to  do  justice, 
and  see  no  reason  why  we  should  not  hold  it  to  be  law.  Whenever 
the  title  passes,  as  there  has  been  no  sale  or  gift  and  no  title  by  pre- 
scription or  by  possession  taken  upon  abandonment  by  the  true  own- 
er, the  transfer  is  made  by  his  inferred  election  to  recognize  as  an 
absolute  ownership  the  qualified  dominion  wrongfully  assumed  by 
the  defendant.  The  true  owner  makes  no  release  in  terms  and  no 
election  in  terms  to  relinquish  his  title ;  but  tire  election  is  inferred  by 
the  law,  to  prevent  injustice.  Formerly  this  election  was  inferred 
when  judgment  for  the  plaintiff  was  entered,  because  his  damages, 
measured  by  the  value  of  the  chattel  and  interest,  were  then  authori- 
tatively assessed,  and  the  judgment  brought  to  his  aid  the  power  of 
the  court  to  enforce  its  collection  out  of  the  wrong-doer's  estate  or  by 
taking  his  person ;  and  this  was  deemed  enough  to  insure  actual  sat- 
isfaction. If  so,  it  was  just  to  infer  that  when  he  accepted  these  rights 
he  elected  to  relinquish  to  the  wrongdoer  the  full  ownership  of  the 
chattel.  An  election  was  not  inferred  when  the  suit  was  commenced, 
although  the  plaintiff  then  alleged  that  the  defendant  had  converted 
the  chattel,  and  although  the  writ  might  contain  a  capias;  because, 
owing  to  the  uncertainties  attendant  upon  the  pursuit  of  remedies  by 
action,  it  was  not  just  to  infer  such  an  election  while  ultimate  satis- 
faction for  the  wrong  was  but  problematical.  Forms  of  action  are  a 
means  of  administering  justice  rather  than  an  end  in  themselves. 
When  it  is  seen  that  the  practical  result  of  a  form  of  action  is  a  failure 
of  justice,  the  courts  will  make  such  changes  as  are  necessary  to  do 
justice.  If  the  entry  of  judgment  in  trover  usually  gave  the  judgment 
creditor  but  an  empty  right,  it  was  not  just  to  infer  that  upon  acquir- 
ing such  a  right  he  relinquished  the  ownership  of  the  chattel,  and  the 
rule  that  required  the  inference  to  be  then  drawn  was  properly 
changed.  The  ground  for  inferring  such  an  election  was  that  upon  the 
entry  of  judgment  he  acquired  an  effectual  right  in  lieu  of  his  prop- 
erty, and  the  doctrine  that,  without  some  actual  satisfaction,  the  in- 
ference of  an  election  would  not  be  drawn  has  been  shown  by  experi- 


LIABILITY   OF    PUBLIC   OFFICERS    FOR   OFFICIAL   ACTS.  525 

ence  to  be  necessary  to  the  administration  of  justice,  and  has  been 
generally  acted  upon,  and  the  modern  rule  adopted  that  the  plaintiff's 
title  is  not  transferred  by  the  entry  of  judgment,  but  is  transferred 
by  actual  satisfaction.  Trover  is  but  a  tentative  attempt  to  obtain  jus- 
tice for  a  wrong,  and,  until  pursued  so  far  that  it  has  given  actual  sat- 
isfaction, ought  not  to  bar  the  plaintiff  from  asserting  his  title.  The 
present  doctrine  is  consistent  with  the  general  principle  stated  by 
Lord  Ellenborough  in  Drake  v.  Mitchell,  3  East,  251,  and  quoted  in 
Vanuxem  v.  Burr,  151  Mass.  386,  389,  24  N.  E.  773,  21  Am.  St.  Rep. 
458,  as  approved  in  Lord  v.  Bigelow,  124  Mass.  185,  that  "a  judgment 
recovered  in  any  form  of  action  is  still  but  a  security  for  the  original 
cause  of  action  until  it  be  made  productive  in  satisfaction  to  the  party." 
Judgment  set  aside,  and  judgment  for  plaintiff  ordered.  FIELD, 
HOLMES,  and  KNOWLTON,  JJ.,  dissenting. 

(See  Thayer  v.  Manley,  73  N.  Y.  305,  309.) 


LIABILITY  OF  PUBLIC   OFFICERS   FOR,  OF- 
FICIAL ACTS. 


I.  JUDICIAL  OFFICERS. 

(13  Wall.  335,  20  L.  Ed.  646.) 

BRADLEY  v.  FISHER. 
(Supreme  Court  of  United  States.    December  Term,  1871.) 

1.  JUDGE — LIABILITY  FOB  JUDICIAL  ACTS. 

Judges  of  courts  of  superior  or  general  jurisdiction  are  not  liable  to 
civil  actions  for  their  judicial  acts,  even  when  such  acts  are  in  excess  of 
their  jurisdiction,  and  are  alleged  to  have  been  done  maliciously  or  cor- 
ruptly;  although  there  is  no  such  exemption  where  there  is  clearly  no 
jurisdiction  over  the  subject-matter,  and  such  want  of  jurisdiction  is 
known  to  the  judge. 

2.  SAME— STRIKING  NAME  OF  ATTORNEY  FROM  ROLL. 

An  order  of  the  criminal  court  of  the  District  of  Columbia,  made  in 
1867,  recited  that  plaintiff,  an  attorney  practicing  in  the  court,  threat- 
ened the  presiding  justice,  as  he  was  descending  from  the  bench,  with 
personal  chastisement  for  alleged  conduct  of  the  judge  during  the  progress 
of  a  criminal  trial  then  pending,  and  directed  that  plaintiff's  name  be 
stricken  from  the  roll  of  attorneys  practicing  in  the  court.  Held,  that  the 
court,  being  at  that  time  a  separate  and  independent  court,  having  general 
criminal  jurisdiction,  possessed  the  power  to  make  such  order;  that  the 
matters  recited  in  the  order  were  ample  ground  for  the  action  of  the 
court  in  making  it ;  and  that,  though  the  court  erred  in  not  citing  plaintiff 


526  LAW  OP  TORTS. 

before  making  such  order,  to  show  cause  why  It  should  not  be  made,  and 
to  afford  him  opportunity  for  explanation  or  defense  or  apology,  such 
error,  however  it  might  have  affected  the  validity  of  the  act,  did  not  make 
it  any  the  less  a  judicial  act;  nor  did  it  render  the  judge  making  the 
order  liable  in  damages  to  plaintiff,  as  though  the  court  had  proceeded 
without  having  any  jurisdiction  whatever  over  its  attorneys. 

Error  to  the  Supreme  Court  of  the  District  of  Columbia. 

Action  by  Joseph  H.  Bradley  against  George  P.  Fisher  for  dam- 
ages alleged  to  have  been  sustained  by  plaintiff  "by  reason  of  the 
willful,  malicious,  oppressive,  and  tyrannical  acts  and  conduct"  of  de- 
fendant, as  a  judge,  in  making  an  order  of  court  striking  the  name  of 
plaintiff  from  the  roll  of  attorneys.  The  jury  found  a  verdict  for  de- 
fendant. To  review  the  judgment  entered  thereon  plaintiff  brought  a 
writ  of  error. 

FIELD,  J.  In  1867  the  plaintiff  was  a  member  of  the  bar  of  the 
supreme  court  of  the  District  of  Columbia,  and  the  defendant  was 
one  of  the  justices  of  that  court.  In  June  of  that  year  the  trial  of  one 
John  H.  Suratt  for  the  murder  of  Abraham  Lincoln  was  commenced 
in  the  criminal  court  of  the  district,  and  was  continued  until  the  loth 
of  the  following  August,  when  the  jury  were  discharged  in  conse- 
quence of  their  inability  to  agree  upon  a  verdict.  The  defendant  held 
that  court,  presiding  at  the  trial  of  Suratt  from  its  commencement  to 
its  close,  and  the  plaintiff  was  one  of  the  attorneys  who  defended  the 
prisoner.  Immediately  upon  the  discharge  of  the  jury,  the  court,  thus 
held  by  the  defendant,  directed  an  order  to  be  entered  on  its  records 
striking  the  name  of  the  plaintiff  from  the  roll  of  attorneys  practicing 
in  that  court.  The  order  was  accompanied  by  a  recital  that  on  the  2d 
of  July  preceding,  during  the  progress  of  the  trial  of  Suratt,  immedi- 
ately after  the  court  had  taken  a  recess  for  the  day,  as  the  presiding 
judge  was  descending  from  the  bench,  he  had  been  accosted  in  a  rude 
and  insulting  manner  by  the  plaintiff,  charging  him  with  having  of- 
fered the  plaintiff  a  series  of  insults  from  the  bench  from  the  com- 
mencement of  the  trial ;  that  the  judge  had  then  disclaimed  any  in- 
tention of  passing  any  insult  whatever,  and  had  assured  the  plaintiff 
that  he  entertained  for  him  no  other  feelings  than  those  of  respect ; 
but  that  the  plaintiff,  so  far  iYom  accepting  this  explanation  or  dis- 
claimer, had  threatened  the  judge  with  personal  chastisement.  The 
plaintiff  appears  to  have  regarded  this  order  of  the  criminal  court  as 
an  order  disbarring  him  from  the  supreme  court  of  the  District ;  and 
the  whole  theory  of  the  present  action  proceeds  upon  that  hypothesis. 
The  declaration  in  one  count  describes  the  criminal  court  as  one  of 
the  branches  of  the  supreme  court,  and  in  the  other  count  represents 
the  order  of  the  criminal  court  as  an  order  removing  the  plaintiff  from 
the  office  of  an  attorney  at  law  in  the  supreme  court  of  the  District; 
and  it  is  for  the  supposed  removal  from  that  court,  and  the  assumed 


LIABILITY   OF   PUBLIC   OFFICERS    FOR   OFFICIAL   ACTS.  527 

damages  consequent  thereon,  that  the  action  is  brought.  Yet  the 
criminal  court  of  the  District  was  at  that  time  a  separate  and  inde- 
pendent court,  and  as  distinct  from  the  supreme  court  of  the  District 
as  the  circuit  court  is  distinct  from  the  supreme  court  of  the  United 
States.  Its  distinct  and  independent  character  was  urged  by  the  plain- 
tiff, and  successfully  urged,  in  this  court,  as  ground  for  relief  against 
the  subsequent  action  of  the  supreme  court  of  the  District,  based  upon 
what  had  occurred  in  the  criminal  court;  and,  because  of  its  distinct 
and  independent  character,  this  court  held  that  the  supreme  court  of 
the  District  possessed  no  power  to  punish  the  plaintiff  on  account  of 
contemptuous  conduct  and  language  before  the  criminal  court  or  in 
the  presence  of  its  judge.  By  this  decision,  which  was  rendered  at 
the  December  term  of  1868,  (Ex  parte  Bradley,  7  Wall.  364,  19  L.  Ed. 
214,)  the  groundwork  of  the  present  action  of  the  plaintiff  is  removed. 
The  law  which  he  successfully  invoked,  and  which  protected  him 
when  he  complained  of  the  action  of  the  supreme  court  of  the  District, 
must  now  equally  avail  for  the  protection  of  the  defendant,  when  it 
is  attempted  to  give  to  the  criminal  court  a  position  and  power  which 
were  then  denied.  The  order  of  the  criminal  court,  as  it  was  then 
constituted,  was  not  an  order  of  the  supreme  court  of  the  District, 
nor  of  one  of  the  branches  of  that  court.  It  did  not,  for  we  know 
that  in  law  it  could  not,  remove  the  plaintiff  from  the  office  of  an  at- 
torney of  that  court,  nor  affect  his  right  to  practice  therein. 

This  point  is  distinctly  raised  by  the  special  plea  of  the  defendant, 
in  which  he  sets  up  that  at  the  time  the  order  complained  of  was 
made,  he  was  regularly  and  lawfully  holding  the  criminal  court  of  the 
District,  a  court  of  record,  having  general  jurisdiction  for  the  trial 
of  crimes  and  offenses  arising  within  the  District,  and  that  the  order 
complained  of  was  an  order  of  the  criminal  court,  made  by  him  in 
the  lawful  exercise  and  performance  of  his  authority  and  duty  as  its 
presiding  justice,  for  official  misconduct  of  the  plaintiff,  as  one  of  its 
attorneys  in  his  presence ;  and  upon  this  plea  the  plaintiff  joined  is- 
sue. The  court  below,  therefore,  did  not  err  in  excluding  the  order  of 
removal  as  evidence  in  the  cause,  for  the  obvious  reason  that  it  did 
not  establish,  nor  tend  to  establish,  the  removal  of  the'  plaintiff  by 
any  order  of  the  defendant,  or  of  the  court  held  by  him,  from  the  bar 
of  the  supreme  court  of  the  District.  And  the  refusal  of  the  court 
below  to  admit  evidence  contradicting  the  recitals  in  that  order  could 
not  be  the  ground  of  any  just  exception,  when  the  order  itself  was 
not  pertinent  to  any  issue  presented.  Nor  is  this  conclusion  affected 
by  the  act  of  congress  passed  in  June,  1870,  nearly  three  years  after 
the  order  of  removal  was  made,  and  nearly  two  years  after  the  present 
action  was  commenced,  changing  the  independent  character  of  the 
criminal  court,  and  declaring  that  its  judgments,  decrees,  and  orders 
should  be  deemed  the  judgments,  decrees,  and  orders  of  the  supreme 
court  of  the  District.  16  Stat.  160.  If  the  order  of  removal  acquired 


528  LAW  OF  TORTS. 

from  this  legislation  a  wider  scope  and  operation  than  it  possessed 
when  made,  the  defendant  is  not  responsible  for  it.  The  original  act 
was  not  altered.  It  was  still  an  order  disbarring  the  plaintiff  only 
from  the  criminal  court,  and  any  other  consequences  are  attributable 
to  the  action  of  congress,  and  not  to  any  action  of  the  defendant. 

But  this  is  not  all.  The  plea,  as  will  be  seen  from  our  statement  of 
it,  not  only  sets  up  that  the  order  of  which  the  plaintiff  complains 
was  an  order  of  the  criminal  court,  but  that  it  was  made  by  the  de- 
fendant in  the  lawful  exercise  and  performance  of  his  authority  and 
duty  as  its  presiding  justice.  In  other  words,  it  sets  up  that  the  order 
for  the  entry  of  which  the  suit  is  brought  was  a  judicial  act,  done  by 
the  defendant  as  the  presiding  justice  of  a  court  of  general  criminal 
jurisdiction.  If  such  were  the  character  of  the  act  and  the  jurisdiction 
of  the  court,  the  defendant  cannot  be  subjected  to  responsibility  for 
it  in  a  civil  action,  however  erroneous  the  act  may  have  been,  and 
however  injurious  in  its  consequences  it  may  have  proved  to  the  plain- 
tiff. For  it  is  a  general  principle  of  the  highest  importance  to  the 
proper  administration  of  justice  that  a  judicial  officer,  in  exercising 
the  authority  vested  in  him,  shall  be  free  to  act  upon  his  own  convic- 
tions, without  apprehension  of  personal  consequences  to  himself.  Lia- 
bility to  answer  to  every  one  who  might  feel  himself  aggrieved  by  the 
action  of  the  judge  would  be  inconsistent  with  the  possession  of  this 
freedom,  and  would  destroy  that  independence  without  which  no 
judiciary  can  be  either  respectable  or  useful.  As  observed  by  a  dis- 
tinguished English  judge,  it  would  establish  the  weakness  of  judicial 
authority  in  a  degrading  responsibility.  (Justice  Mayne,  in  Taaffe  v. 
Downes,  reported  in  a  note  to  3  Moore,  P.  C.  41.) 

The  principle,  therefore,  which  exempts  judges  of  courts  of  superior 
or  general  authority  from  liability  in  a  civil  action  for  acts  done  by 
them  in  the  exercise  of  their  judicial  functions,  obtains  in  all  countries 
where  there  is  any  well-ordered  system  of  jurisprudence.  It  has  been 
the  settled  doctrine  of  the  English  courts  for  many  centuries,  and 
has  never  been  denied,  that  we  are  aware  of,  in  the  courts  of  this 
country.  It  has,  as  Chancellor  Kent  observes,  "a  deep  root  in  the 
common  law."  Yates  v.  Lansing,  5  Johns.  291. 

Nbr  can  this  exemption  of  the  judges  from  civil  liability  be  affected 
by  the  motives  with  which  their  judicial  acts  are  performed.  The  pur- 
ity of  their  motives  cannot  in  this  way  be  the  subject  of  judicial  in- 
quiry. This  was  adjudged  in  the  Case  of  Floyd  and  Barker,  reported 
by  Coke,  in  1608,  (12  Coke,  25,)  where  it  was  laid  down  that  the  judges 
of  the  realm  could  not  be  drawn  in  question  for  any  supposed  corrup- 
tion impeaching  the  verity  of  their  records,  except  before  the  king 
himself;  and  it  was  observed  that,  if  they  were  required  to  answer 
otherwise,  it  would  "tend  to  the  scandal  and  subversion  of  all  justice, 
and  those  who  are  the  most  sincere  would  not  be  free  from  continual 
calumniations."  The  truth  of  this  latter  observation  is  manifest  to  all 


LIABILITY   OP   PUBLIC   OFFICERS   FOR   OFFICIAL   ACTS.  529 

persons  having  much  experience  with  judicial  proceedings  in  the  su- 
perior courts.  Controversies  involving  not  merely  great  pecuniary 
interests,  but  the  liberty  and  character  of  the  parties,  and  consequently 
exciting  the  deepest  feelings,  are  being  constantly  determined  in  those 
courts,  in  which  there  is  great  conflict  in  the  evidence,  and  great  doubt 
as  to  the  law  which  should  govern  their  decision.  It  is  this  class  of 
cases  which  imposes  upon  the  judge  the  severest  labor,  and  often 
creates  in  his  mind  a  painful  sense  of  responsibility.  Yet  it  is  precise- 
ly in  this  class  of  cases  that  the  losing  party  feels  most  keenly  the  de- 
cision against  him,  and  most  readily  accepts  anything  but  the  sound- 
ness of  the  decision  in  explanation  of  the  action  of  the  judge.  Just  in 
proportion  to  the  strength  of  his  convictions  of  the  correctness  of  his 
own  view  of  the  case  is  he  apt  to  complain  of  the  judgment  against 
him,  and  from  complaints  of  the  judgment  to  pass  to  the  ascription 
of  improper  motives  to  the  judge.  When  the  controversy  involves 
questions  affecting  large  amounts  of  property,  or  relates  to  a  matter 
of  general  public  concern,  or  touches  the  interests  of  numerous  par- 
ties, the  disappointment  occasioned  by  an  adverse  decision  often  finds 
vent  in  imputations  of  this  character,  and  from  the  imperfection  of 
human  nature  this  is  hardly  a  subject  of  wonder.  If  civil  actions  could 
be  maintained  in  such  cases  against  the  judge,  because  the  losing  party 
should  see  fit  to  allege  in  his  complaint  that  the  acts  of  the  judge 
were  done  with  partiality,  or  maliciously,  or  corruptly,  the  protection 
essential  to  judicial  independence  would  be  entirely  swept  away.  Few 
persons  sufficiently  irritated  to  institute  an  action  against  a  judge  for 
his  judicial  acts  would  hesitate  to  ascribe  any  character  to  the  acts 
which  would  be  essential  to  the  maintenance  of  the  action.  If,  upon 
such  allegations,  a  judge  could  be  compelled  to  answer  in  a  civil  ac- 
tion for  his  judicial  acts,  not  only  would  his  office  be  degraded  and  his 
usefulness  destroyed,  but  he  would  be  subjected  for  his  protection  to 
the  necessity  of  preserving  a  complete  record  of  all  the  evidence  pro- 
duced before  him  in  every  litigated  case,  and  of  the  authorities  cited 
and  arguments  presented,  in  order  that  he  might  be  able  to  show,  to 
the  judge  before  whom  he  might  be  summoned  by  the  losing  party, — 
and  that  judge,  perhaps,  one  of  an  inferior  jurisdiction, — that  he  had 
decided  as  he  did  with  judicial  integrity;  and  the  second  judge  would 
be  subjected  to  a  similar  burden,  as  he,  in  his  turn,  might  also  be  held 
amenable  by  the  losing  party. 

Some  just  observations  on  this  head  of  the  late  Chief  Justice  Shaw 
will  be  found  in  Pratt  v.  Gardner,  2.  Cush.  68,  48  Am.  Dec.  652,  and  the 
point  here  was  adjudged  in  the  recent  case  of  Fray  v.  Blackburn,  3 
Best  &  S.  576,  by  the  queen's  bench  of  England.  One  of  the  judges 
of  that  bench  was  sued  for  a  judicial  act,  and  on  demurrer  one  of  the 
objections  taken  to  the  declaration  was  that  it  was  bad  in  not  alleging 
malice.  Judgment  on  the  demurrer  having  passed  for  the  defendant, 
the  plaintiff  applied  for  leave  to  amend  his  declaration  by  introducing 
CHASE  '2o  ED.) — 34 


530  LAW  OF  TORTS. 

an  allegation  of  malice  and  corruption ;  but  Mr.  Justice  Cromptcm 
replied :  "It  is  a  principle  of  our  law  that  no  action  will  lie  against  a 
judge  of  one  of  the  superior  courts  for  a  judicial  act,  though  it  be 
alleged  to  have  been  done  maliciously  and  corruptly;  therefore  the 
proposed  allegation  would  not  make  the  declaration  good.  The  pub- 
lic are  deeply  interested  in  this  rule,  which,  indeed,  exists  for  their 
benefit,  and  was  established  in  order  to  secure  the  independence  of 
the  judges,  and  prevent  them  being  harassed  by  vexatious  actions;" 
and  the  leave  .was  refused. 

In  this  country  the  judges  of  the  superior  courts  of  record  are  only 
responsible  to  the  people,  or  the  authorities  constituted  by  the  people 
from  whom  they  receive  their  commissions,  for  the  manner  in  which 
they  discharge  the  great  trusts  of  their  office.  If,  in  the  exercise  of 
the  powers  with  which  they  are  clothed  as  ministers  of  justice,  they 
act  with  partiality,  or  maliciously,  or  corruptly,  or  arbitrarily,  or  op- 
pressively, they  may  be  called  to  an  account  by  impeachment,  and 
suspended  or  removed  from  office.  In  some  states  they  may  be  thus 
suspended  or  removed  without  impeachment,  by  a  vote  of  the  two 
houses  of  the  legislature. 

In  the  case  of  Randall  v.  Brigham,  7  Wall.  523,  19  L.  Ed.  285,  de- 
cided by  this  court  at  the  December  term  of  1868,  we  had  occasion  to 
consider  at  some  length  the  liability  of  judicial  officers  to  answer  in 
a  civil  action  for  their  judicial  acts.  In  that  case  the  plaintiff  had 
been  removed  by  the  defendant,  who  was  one  of  the  justices  of  the 
superior  court  of  Massachusetts,  from  the  bar  of  that  state ;  and  the 
action  was  brought  for  such  removal,  which  was  alleged  in  the  declara- 
tion to  have  been  made  without  lawful  authority,  and  wantonly,  ar- 
bitrarily, and  oppressively.  In  considering  the  questions  presented, 
the  court  observed  that  it  was  a  general  principle,  applicable  to  all 
judicial  officers,  that  they  were  not  liable  to  a  civil  action  for  any 
judicial  act  done  by  them  within  their  jurisdiction ;  that  with  refer- 
ence to  judges  of  limited  and  inferior  authority  it  had  been  held  that 
they  were  protected  only  when  they  acted  within  their  jurisdiction; 
that,  if  this  were  the  case  with  respect  to  them,  no  such  limitation  ex- 
isted with  respect  to  judges  of  superior  or  general  authority;  that 
they  were  not  liable  in  civil  actions  for  their  judicial  acts,  even  when 
such  acts  were  in  excess  of  their  jurisdiction,  "unless,  perhaps,  when 
the  acts  in  excess  of  jurisdiction  are  done  maliciously  or  corruptly." 
The  qualifying  words  were  inserted  upon  the  suggestion  that  the  pre- 
vious language  laid  down  the  doctrine  of  judicial  exemption  from  lia- 
bility to  civil  actions  in  terms  broader  than  was  necessary  for  the 
case  under  consideration,  and  that  if  the  language  remain  unqualified 
it  would  require  an  explanation  of  some  apparently  conflicting  adjudi- 
cations found  in  the  reports.  They  were  not  intended  as  an  expression 
of  opinion  that  in  the  cases  supposed  such  liability  would  exist,  but 
to  avoid  the  expression  of  a  contrary  doctrine. 


LIABILITY   OF    PUBLIC   OFFICERS   FOR   OFFICIAL   ACTS.  531 

In  the  present  case  we  have  looked  into  the  authorities,  and  are 
clear  from  them,  as  well  as  from  the  principle  on  which  any  ex- 
emption is  maintained,  that  the  qualifying  words  used  were  not  nec- 
essary to  a  correct  statement  of  the  law,  and  that  judges  of  courts  of 
superior  or  general  jurisdiction  are  not  liable  to  civil  actions  for  their 
judicial  acts,  even  when  such  acts  are  in  excess  of  their  jurisdiction, 
and  are  alleged  to  have  been  done  maliciously  or  corruptly.  A  dis- 
tinction must  be  here  observed  between  excess  of  jurisdiction  and  the 
clear  absence  of  all  jurisdiction  over  the  subject-matter.  Where  there 
is  clearly  no  jurisdiction  over  the  subject-matter,  any  authority  ex- 
ercised is  a  usurped  authority;  and  for-the  exercise  of  such  author- 
ity, when  the  want  of  jurisdiction  is  known  to  the  judge,  no  excuse  is 
permissible.  But  where  jurisdiction  over  the  subject-matter  is  in- 
vested by  law  in  the  judge,  or  in  the  court  which  he  holds,  the  manner 
and  extent  in  which  the  jurisdiction  shall  be  exercised  are  generally 
as  much  questions  for  his  determination  as  any  other  questions  in- 
volved in  the  case,  although  upon  the  correctness  of  his  determination 
in  these  particulars  the  validity  of  his  judgments  may  depend.  Thus 
if  a  probate  court,  invested  only  with  authority  over  wills  and  the  set- 
tlement of  estates  of  deceased  persons,  should  proceed  to  try  parties 
for  public  offenses,  jurisdiction  over  the  subject  of  offenses  being  en- 
tirely wanting  in  the  court,  and  this  being  necessarily  known  to  its 
judge,  his  commission  would  afford  no  protection  to  him  in  the  ex- 
ercise of  the  usurped  authority.  But  if,  on  the  other  hand,  a  judge 
of  a  criminal  court,  invested  with  general  criminal  jurisdiction  over 
offenses  committed  within  a  certain  district,  should  hold  a  particular 
act  to  be  a  public  offense,  which  is  not  by  the  law  made  an  offense,  and 
proceed  to  the  arrest  and  trial  of  a  party  charged  with  such  act,  or 
should  sentence  a  party  convicted  to  a  greater  punishment  than  that 
authorized  by  the  law  upon  its  proper  construction,  no  personal  lia- 
bility to  civil  action  for  such  acts  would  attach  to  the  judge,  although 
those  acts  would  be  in  excess  of  his  jurisdiction,  or  of  the  jurisdiction 
of  the  court  held  by  him ;  for  these  are  particulars  for  his  judicial 
consideration,  whenever  his  general  jurisdiction  over  the  subject-mat- 
ter is  invoked.  Indeed,  some  of  the  most  difficult  and  embarrassing 
questions  which  a  judicial  officer  is  called  upon  to  consider  and  deter- 
mine relate  to  his  jurisdiction,  or  that  of  the  court  "held  by  him,  or  the 
manner  in  which  the  jurisdiction  shall  be  exercised.  And  the  same 
principle  of  exemption  from  liability  which  obtains  for  errors  com- 
mitted in  the  ordinary  prosecution  of  a  suit  where  there  is  jurisdiction 
of  both  subject  and  person  applies  in  cases  6f  this  kind,  and  for  the 
same  reasons. 

The  distinction  here  made  between  acts  done  in  excess  of  jurisdic- 
tion, and  acts  where  no  jurisdiction  whatever  over  the  subject-matter 
exists,  was  taken  by  the  court  of  king's  bench  in  Ackerley  v.  Parkin- 
son, 3  Maule  &  S.  411.  In  that  case  an  action  was  brought  against 


§32  LAW  OF  TORTS. 

the  vicar-general  of  the  bishop  of  Chester,  and  his  surrogate,  who  held 
the  consistorial  and  episcopal  court  of  the  bishop,  for  excommunicat- 
ing the  plaintiff  with  the  greater  excommunication  for  contumacy,  in 
not  taking  upon  himself  the  administration  of  an  intestate's  effects, 
to  whom  the  plaintiff  was  next  of  kin ;  the  citation  issued  to  him 
being  void,  and  having  been  so  adjudged.  The  question  presented 
was  whether,  under  these  circumstances,  the  action  would  lie.  The 
citation  being  void,  the  plaintiff  had  not  been  legally  brought  before 
the  court,  and  the  subsequent  proceedings  were  set  aside,  on  appeal, 
on  that  ground.  Lord  Ellenborough  observed  that  it  was  his  opinion 
that  the  action  was  not  maintainable  if  the  ecclesiastical  court  had  a 
general  jurisdiction  over  the  subject-matter,  although  the  citation  was 
a  nullity,  and  said  that  "no  authority  had  been  cited  to  show  that  the 
judge  would  be  liable  to  an  action  where  he  has  jurisdiction,  but  has 
proceeded  erroneously,  or,  as  it  is  termed,  inverso  ordine."  Mr.  Jus- 
tice Blanc  said  there  was  "a  material  distinction  between  a  case  where 
a  party  comes  to  an  erroneous  conclusion  in  a  matter  over  which  he 
has  jurisdiction  and  a  case  where  he  acts  wholly  without  jurisdic- 
tion ;"  and  held  that  where  the  subject-matter  was  within  the  jurisdic- 
tion of  the  judge,  and  the  conclusion  was  erroneous,  although  the 
party  should  by  reason  of  the  error  be  entitled  to  have  the  conclusion 
set  aside,  and  to  be  restored  to  his  former  rights,  yet  he  was  not  en- 
titled to  claim  compensation  in  damages  for  the  injury  done  by  such 
erroneous  conclusion,  as  if  the  court  had  proceeded  without  any  juris- 
diction. 

The  exemption  of  judges  of  the  superior  courts  of  record  from  lia- 
bility to  civil  suit  for  their  judicial  acts  existing  when  there  is  jurisdic- 
tion of  the  subject-matter,  though  irregularity  and  error  attended  the 
exercise  of  the  jurisdiction,  the  exemption  cannot  be  affected  by  any 
consideration  of  the  motives  with  which  the  acts  are  done.  The  alle- 
gation of  malicious  or  corrupt  motives  could  always  be  made,  and,  if 
the  motives  could  be  inquired  into,  judges  would  be  subjected  to 
the  same  vexatious  litigation  upon  such  allegations,  whether  the  mo- 
tives had  nor  had  not  any  real  existence.  Against  the  consequences 
of  their  erroneous  or  irregular  action,  from  whatever  motives  pro- 
ceeding, the  law  has  provided  for  private  parties  numerous  remedies, 
and  to  those  remedies  they  must,  in  such  cases,  resort.  But  for  mal- 
ice or  corruption  in  their  action,  while  exercising  their  judicial  func- 
tions within  the  general  scope  of  their  jurisdiction,  the  judges  of  these 
courts  can  only  be  reached  by  public  prosecution  in  the  form  of  im- 
peachment, or  in  such  other  form  as  may  be  specially  prescribed. 

If,  now,  we  apply  the  principle  thus  stated,  the  question  presented 
in  this  case  is  one  of  easy  solution.  The  criminal  court  of  the  Dis- 
trict, as  a  court  of  general  criminal  jurisdiction,  possessed  the  power 
to  strike  the  name  of  the  plaintiff  from  its  rolls  as  a  practicing  attor- 
ney. This  power  of  removal  from  the  bar  is  possessed  by  all  courts 


LIABILITY   OF    PUBLIC    OFFICERS   FOR   OFFICIAL   ACTS.  533 

which  have  authority  to  admit  attorneys  to  practice.  It  is  a  power 
which  should  only  be  exercised  for  the  most  weighty  reasons,  such  as 
would  render  the  continuance  of  the  attorney  in  practice  incompatible 
with  a  proper  respect  of  the  court  for  itself,  or  a  proper  regard  for  the 
integrity  of  the  profession ;  and  except  where  matters  occurring  in 
open  court,  in  presence  of  the  judges,  constitute  the  grounds  of  its 
action,  the  power  of  the  court  should  never  be  exercised  without  no- 
tice to  the  offending  party  of  the  grounds  of  complaint  against  him, 
and  affording  him  ample  opportunity  of  explanation  and  defense. 
This  is  a  rule  of  natural  justice,  and  is  as  applicable  to  cases  where  a 
proceeding  is  taken  to  reach  the  right  of  an  attorney  to  practice  his 
profession  as  it  is  when  the  proceeding  is  taken  to  reach  his  real  or 
personal  property;  and  even  where  the  matters  constituting  the 
grounds  of  complaint  have  occurred  in  open  court,  under  the  personal 
observation  of  the  judges,  the  attorney  should  ordinarily  be  heard 
before  the  order  of  removal  is  made,  for  those  matters  may  not  be 
inconsistent  with  the  absence  of  improper  motives  on  his  part,  or  may 
be  susceptible  of  such  explanation  as  would  mitigate  their  offensive 
character,  or  he  may  be  ready  to  make  all  proper  reparation  and  apol- 
ogy. Admission  as  an  attorney  is  not  obtained  without  years  of  labor 
and  study.  The  office  which  the  party  thus  acquires  is  one  of  value, 
and  often  becomes  the  source  of  great  honor  and  emolument  to  its 
possessor.  To  most  persons  who  enter  the  profession  it  is  the  means 
of  support  to  themselves  and  their  families.  To  deprive  one  of  an 
office  of  this  character  would  often  be  to  decree  poverty  to  himself, 
and  destitution  to  his  family.  A  removal  from  the  bar  should  there- 
fore never  be  decreed  where  any  punishment  less  severe,  such  as 
reprimand,  temporary  suspension,  or  fine,  would  accomplish  the  end 
desired.  But,  on  the  other  hand,  the  obligation  which  attorneys  im- 
pliedly  assume,  if  they  do  not  by  express  declaration  take  upon  them- 
selves, when  they  are  admitted  to  the  bar,  is  not  merely  to  be  obedi- 
ent to  the  constitution  and  laws,  but  to  maintain  at  all  times  the  re- 
spect due  to  courts  of  justice  and  judicial  officers.  This  obligation  is 
not  discharged  by  merely  observing  the  rules  of  courteous  demeanor 
in  open  court,  but  it  includes  abstaining  out  of  court  from  all  in- 
sulting language  and  offensive  conduct  towards  the  judges  personally 
for  their  judicial  acts.  "In  matters  collateral  to  official  duty,"  said 
Chief  Justice  Gibson  in  the  Case  of  Austin,  5  Rawle,  204,  "the  judge 
is  on  a  level  with  the  members  of  the  bar  as  he  is  with  his  fellow- 
citizens,  his  title  to  distinction  and  respect  resting  on  no  other  founda- 
tion than  his  virtues  and  qualities  as  a  man.  But  it  is  nevertheless 
evident  that  professional  fidelity  may  be  violated  by  acts  which  fall 
without  the  lines  of  professional  functions,  and  which  may  have  been 
performed  out  of  the  pale  of  the  court.  Such  would  be.  the  conse- 
quences of  beating  or  insulting  a  judge  in  the  street  for  a  judgment  in 
court.  No  one  would  pretend  that  an  attempt  to  control  the  delibera- 


534  LAW  OF  TORTS. 

tion  of  the  bench  by  the  apprehension  of  violence,  and  subject  the 
judges  to  the  power  of  those  who  are,  or  ought  to  be,  subordinate 
to  them,  is  compatible  with  professional  duty,  or  the  judicial  inde- 
pendence so  indispensable  to  the  administration  of  justice.  And  an 
enormity  of  the  sort,  practiced  but  on  a  single  judge,  would  be  an 
offense  as  much  against  the  court,  which  is  bound  to  protect  all  its 
members,  as  if  it  had  been  repeated  on  the  person  of  each  of  them, 
because  the  consequences  to  suitors  and  the  public  would  be  the  same ; 
and,  whatever  may  be  thought  in  such  a  case  of  the  power  to  punish 
for  contempt,  there  can  be  no  doubt  of  the  existence  of  a  power  to 
strike  the  offending  attorney  from  the  roll." 

The  order  of  removal  complained  of  in  this  case  recites  that  the 
plaintiff  threatened  the  presiding  justice  of  the  criminal  court,  as  he 
was  descending  from  the  bench,  with  personal  chastisement  for  al- 
leged conduct  of  the  judge  during  the  progress  of  a  criminal  trial 
then  pending.  The  matters  thus  recited  are  stated  as  the  grounds 
for  the  exercise  of  the  power  possessed  by  the  court  to  strike  the 
name  of  the  plaintiff  from  the  roll  of  attorneys  practicing  therein.  It 
is  not  necessary  for  us  to  determine  in  this  case  whether,  under  any 
circumstances,  the  verity  of  this  record  can  be  impeached.  It  is  suffi- 
•  cient  to  observe  that  it  cannot  be  impeached  in  this  action  or  in  any 
civil  action  against  the  defendant;  and,  if  the  matters  re-cited  are 
taken  as  true,  there  was  ample  ground  for  the  action  of  the  court. 
A  greater  indignity  could  hardly  be  offered  to  a  judge  than  to  threaten 
him  with  personal  chastisement  for  his  conduct  on  the  trial  of  a  cause. 
A  judge  who  should  pass  over  in  silence  an  offense  of  such  gravity 
would  soon  find  himself  a  subject  of  pity,  rather  than  of  respect. 

The  criminal  court  of  the  District  erred  in  not  citing  the  plaintiff, 
before  making  the  order  striking  his  name  from  the  roll  of  its  at- 
torneys, to  show  cause  why  such  order  should  not  be  made  for  the 
offensive  language  and  conduct  stated,  and  affording  him  opportunity 
for  explanation,  or  defense,  or  apology.  But  this  erroneous  manner 
in  which  its  jurisdiction  was  exercised,  however  it  may  have  affected 
the  validity  of  the. act,  did  not  make  the  act  any  less  a  judicial  act; 
nor  did  it  render  the  defendant  liable  to  answer  in  damages  for  it  at 
the  suit  of  the  plaintiff,  as  though  the  court  had  proceeded  without 
having  any  jurisdiction  whatever  over  its  attorneys. 

We  find  no  error  in  the  rulings  of  the  court  below,  and  its  judgment 
must  therefore  be  affirmed,  and  it  is  so  ordered. 

Judgment  affirmed. 

DAVIS,  J.,  with  whom  concurred  CLIFFORD,  J.,  (dissenting.) 
I  agree  that  judicial  officers  are  exempt  from  responsibility  in  a  civil 
action  for  all  their  judicial  acts  in  respect  to  matters  of  controversy 
within  their  jurisdiction.  I  agree,  further,  that  judges  of  superior 
or  general  authority  are  equally  exempt  from  liability,  even  when 


LIABILITY   OF   PUBLIC   OFFICERS    FOR   OFFICIAL   ACTS.  535 

they  have  exceeded  their  jurisdiction,  unless  the  acts  complained  of 
were  done  maliciously  or  corruptly.  But  I  dissent  from  the  rule  laid 
down  by  the  majority  of  the  court,  that  a  judge  is  exempt  from  lia- 
bility in  a  case  like  the  present,  where  it  is  alleged,  not  only  that  his 
proceeding  was  in  excess  of  jurisdiction,  but  that  he  acted  maliciously 
and  corruptly.  If  he  did  so,  he  is,  in  my  opinion,  subject  to  suit  the 
same  as  a  private  person  would  be  under  like  circumstances.  I  also 
dissent  from  the  opinion  of  the  majority  of  the  court  for  the  reason 
that  it  discusses  the  merits  of  the  controversy,  which,  in  the  state  of 
the  record,  I  do  not  consider  open  for  examination. 

(See.  to  the  same  effect,  Lange  v.  Benedict,  73  N.  Y.  12,  29  Am.  Rep.  80  [a 
valuable  decision  holding  a  judge  of  a  superior  court  not  liable  for  ex- 
ceeding his  jurisdiction];  Pike  v.  Megoun,  44  Mo.  491;  Scott  v.  Fishblate,  117 
N.  C.  2G5,  23  S.  E.  436,  30  L.  R.  A.  696;  Anderson  v.  Gorrie  [1895]  1  Q.  B.  668. 
The  same  rule  has  been  applied  to  grand  jurors  [Turpen  v.  Booth,  56  Cal.  65, 
38  Am.  Rep.  48];  and  to  the  heads  of  the  executive  departments  of  the  United 
States  government  [Spalding  v.  Vilas,  161  U.  S.  483,  16  Sup.  Ct.  631,  40  L.  Ed. 
788]. 

Inferior  magistrates,  as  justices  of  the  peace,  have  been  held  liable  In  a 
civil  action  for  exceeding  their  jurisdiction,  knowing  the  facts  which  con- 
stitute the  defect  of  jurisdiction.  Clarke  v.  May,  2  Gray,  410,  61  Am.  Dec. 
470;  Piper  v.  Pearson,  2  Gray,  120,  61  Am.  Dec.  438,  and  cases  cited;  Lange 
v.  Benedict,  73  N.  Y.  12,  34,  29  Am.  Rep.  80;  White  v.  Morse,  139  Mass.  163, 
29  N.  E.  539.  But  they  are  not  liable  civilly  for  honest  mistakes  in  judgment 
in  cases  within  their  jurisdiction  [Austin  v.  Vrooman,  128  N.  Y.  229,  28  N.  E. 
477,  14  L.  R.  A.  138];  nor,  in  some  jurisdictions,  even  if  they,  having  juris- 
diction, acted  maliciously  or  in  bad  faith  [Jones  v.  Brown,  54  Iowa,  74,  6  N. 
W.  140;  Pratt  v.  Gardner,  2  Cush.  63,  48  Am.  Dec.  652]. 

See,  further,  as  to  the  civil  liability  of  judges  for  their  official  acts,  ante, 
pp.  227-234.) 


(3  Denio,  117.) 

WEAVER  v.  DEVENDORF  et  aL 
(Supreme  Court  of  New  York.     May  Term,  1846.) 

L  OFFICEBS — LIABILITY  FOB  JUDICIAL  ACTS. 

No  public  officer  is  responsible  in  a  civil  suit  for  a  judicial  determina- 
tion, however  erroneous  it  may  be,  and  however  malicious  the  motive 
which  produced  it,  if  he  had  jurisdiction  of  the  particular  case,  and  was 
authorized  to  determine  it 

2.  SAME— ASSESSORS  OF  TAXES— LIABILITY  FOB  ERRONEOUS  ASSESSMENT. 

Assessors  of  taxes  act  judicially  in  fixing  the  value  of  taxable  property, 
where  it  is  not  sworn  to  as  authorized  by  law;  and  they  are  not  liable  to 
a  civil  action,  by  one  over  whose  person  and  property  they  had  jurisdic- 
tion for  the  purpose  of  assessment,  for  failing  to  make  any  allowance 
or  deduction  on  account  of  an  exemption  of  a  certain  amount  to  which 
he  was  entitled,  or  for  assessing  his  property  at  a  higher  rate  than  that 
of  others. 


536  LAW  OF  TORTS. 

Error  to  Court  of  Common  Pleas,  Herkimer  County. 

Action  on  the  case  by  Weaver  against  Devendorf  and  others, 
brought  before  a  justice  of  the  peace.  The  declaration  alleged  that 
defendants,  being  assessors  of  the  town  of  Frankfort  for  a  certain 
year,  assessed  plaintiff's  taxable  property  at  $1,800,  and  in  so  doing 
refused  to  allow  him  the  benefit  of  the  exemption  to  which  he  was 
entitled  as  a  minister  of  the  gospel ;  that  they  estimated  his  property 
at  a  higher  rate  than  that  of  other  taxable  inhabitants  of  the  town, 
and  refused  to  make  a  deduction  from  his  personal  property  for  debts 
owing  by  him,  though  he  proved  to  their  satisfaction  that  he  owed 
such  debts;  by  means  of  which  he  was  taxed  and  obliged  to  pay  a 
large  amount,  etc.  In  some  of  the  counts  defendants'  conduct  was 
charged  to  have  been  willful  and  corrupt,  and  in  others  careless  and 
negligent.  Defendants  pleaded  the  general  issue.  On  trial,  the  jus- 
tice rendered  judgment  for  plaintiff,  which,  on  certiorari,  was  re- 
versed by  the  common  pleas.  To  review  the  judgment  of  the  com- 
mon pleas  plaintiff  brought  a  writ  of  error. 

BEARDSLEY,  J.  Although  the  plaintiff  may  have  been  a  minister 
of  the  gospel,  still  his  estate,  beyond  $1,500  in  value,  was  equally  sub- 
ject to  taxation  with  that  of  other  persons.  I  Rev.  St.  pp.  387,  388, 
§§  I,  4,  5.  It  is  not  suggested  that  his  property  was  short  of  that 
amount,  so  that  he  was  wholly  exempt  from  taxation,  and  upon  the 
evidence  that  could  not  be  urged  with  a  show  of  plausibility.  We 
need  not,  therefore,  inquire  what  the  rule  in  such  a  case  would  be. 
This  plaintiff  appears  to  have  been  worth  some  five  or  six  thousand 
dollars;  his  real  estate  in  the  town  where  he  resided,  and  in  which 
the  question  arose,  being  somewhat  more  than  $2,000  in  value.  It 
was  therefore  not  a  case  in  which  the  property  of  the  plaintiff  was 
totally  exempt  from  taxation,  and  over  which  the  defendants  had  no 
jurisdiction  whatever,  but  one  in  which  they  were  authorized  and  re- 
quired by  law  to  make  an  assessment  of  the  property,  even  if  the 
owner  was  a  minister  of  the  gospel. 

The  grounds  of  complaint  on  the  part  of  the  plaintiff,  as  far  as  I 
can  collect  them  from  the  return,  were  twofold — First,  that  no  al- 
lowance or  deduction  was  made,  in  assessing  his  property,  on  account 
of  his  being  a  minister ;  and,  secondly,  that  his  property  was  assess- 
ed at  a  higher  rate  than  that  of  others,  so  that  he  was  thereby  com- 
pelled to  bear  an  undue  proportion  of  the  public  burdens.  There  is 
no  evidence  in  the  case,  if  the  fact  were  material,  to  show  that  the 
defendants  did  not  allow  the  exemption  claimed  to  the  extent  of 
$1,500;  and  if  the  plaintiff  was  a  minister,  and  entitled  to  that  deduc- 
tion, we  cannot  presume  against  the  defendants,  who  were  public  offi- 
cers, that  they  violated  their  duty  in  omitting  to  make  the  proper  al- 
lowance. The  presumption  is  that  public  officers  do  their  duty,  and 
upon  this  return  it  is  rather  to  be  inferred  that  the  deduction  of 


LIABILITY   OF   PUBLIC   OFFICERS    FOR   OFFICIAL   ACTS.  537 

$1,500  was  made.  The  plaintiff  was  assessed  to  the  amount  of  $1,800 
for  real  and  personal  property,  and  which  may  have  been  the  residue 
after  deducting  $1,500,  a  conclusion  very  well  warranted  by  the  evi- 
dence. But,  in  my  view  of  the  case,  it  is  not  at  all  material  whether 
the  $1,500  were  or  were  not  deducted  by  the  defendants,  or  whether 
the  plaintiff's  property  was  assessed  at  a  higher  rate  than  that  of 
others,  for  in  neither  event  can  this  action  be  sustained. 

The  defendants  were  assessors  of  Frankfort,  where  the.  plaintiff 
resided,  and  as  such  had  jurisdiction  over  all  taxable  inhabitants  of 
that  town.  His  real  estate  in  the  town  exceeded  $1,500  in  value. 
It  was  therefore  plainly  a  case  in  which  the  defendants  had  jurisdic- 
tion over  the  property,  as  well  as  the  person,  of  the  plaintiff ;  and  it 
was  their  imperative  duty  to  ascertain,  as  far  as  practicable,  the  tax- 
able property  of  the  plaintiff,  and  estimate  its  true  value  according 
to  their  best  information,  belief,  and  judgment.  I  Rev.  St.  pp.  389, 
390,  tit.  2,  arts,  i,  2.  In  some  particulars  the  duty  of  assessors  is 
undoubtedly  ministerial ;  but,  in  fixing  the  value  of  taxable  property, 
the  power  exercised  is  in  its  nature  purely  judicial.  With  the  excep- 
tion of  real  and  personal  estate,  the  value  of  which  is  sworn  to  as  au- 
thorized by  law,  (Id.  pp.  392,  393,  §§  15,  16,  22,)  the  residue  is  to  be 
valued,  estimated,  and  determined  by  the  assessors.  Id.  pp.  393,  394, 
§§  17,  26.  This  is  emphatically  a  judicial  act.  The  writ  of  certiorari, 
at  common  law,  lies  only  to  officers  exercising  judicial  powers,  and 
to  remove  proceedings  of  that  character.  People  v.  Mayor,  etc.,  2 
Hill,  9,  ii ;  In  re  Mount  Morris  Square,  etc.,  Id.  14,  21,  22.  Yet  all 
the  authorities  agree  that  this  writ  lies  to  remove  an  assessment,  al- 
though, as  the  allowance  of  the  writ  is  discretionary,  the  court,  on 
grounds  of  public  policy  and  convenience,  will  ordinarily  refuse  the 
writ  in  cases  of  this  nature.  People  v.  Supervisors,  15  Wend.  198; 
People  v.  Supervisors,  I  Hill,  195 ;  2  Hill,  supra.  The  act  complain- 
ed of  in  this  case  was  therefore  a  judicial  determination.  The  as- 
sessors were  judges  acting  clearly  within  the  scope  and  limit  of  their 
authority.  They  were  not  volunteers,  but  the  duty  was  imperative 
and  compulsory;  and,  acting  as  they  did,  in  the  performance  of  a  pub- 
lic duty,  in  its  nature  judicial,  they  were  not  liable  to  an  action,  how- 
ever erroneous  or  wrongful  their  determination  may  have  been.  This 
case  might  be  disposed  of  on  narrow  ground,  for  there  was  no  evi- 
dence to  justify  the  conclusion  that  the  defendants  acted  maliciously 
in  fixing  the  value  of  the  property  of  the  plaintiff,  or  of  any  one  else ; 
and,  surely,  it  will  not  be  pretended  they  were  liable  for  mere  error 
of  judgment.  But  I  prefer  to  place  the  decision  on  the  broad  ground 
that  no  public  officer  is  responsible  in  a  civil  suit,  for  a  judicial  deter- 
mination, however  erroneous  it  may  be,  and  however  malicious  the 
motive  which  produced  it.  Such  acts,  when  corrupt,  may  be  punished 
criminally;  but  the  law  will  not  allow  malice  and  corruption  to  be 
charged  in  a  civil  suit  against  such  an  officer  for  what  he  does  in  the 


538  LAW  OF  TORTS. 

performance  of  a  judicial  duty.  The  rule  extends  to  judges,  from 
the  highest  to  the  lowest,  to  jurors,  and  to  all  public  officers,  what- 
ever name  they  may  bear  in  the  exercise  of  judicial  power.  It  of 
course  applies  only  where  the  judge  or  officer  had  jurisdiction  of  the 
particular  case,  and  was  authorized  to  determine  it.  If  he  transcends 
the  limits  of  his  authority,  he  necessarily  ceases,  in  the  particular 
case,  to  act  as  a  judge,  and  is  responsible  for  all  consequences.  But 
with  these  limitations  the  principle  of  irresponsibility,  so  far  as  re- 
spects a  civil  remedy,  is  as  old  as  the  common  law  itself.  The  au- 
thorities on  this  subject  are  almost  innumerable.  I  shall  not  attempt 
to  state  any  of  them  in  detail,  but  will  content  myself  by  referring 
generally  to  some  of  the  elementary  works  and  adjudged  cases,  which 
will  be  found  fully  to  sustain  the  principles  I  have  stated :  Brown, 
Act.  Law,  191-200;  I  Chit.  PI.  (7th  Am.  Ed.)  89,  209,  210;  2  Saund. 
PI.  &  Ev.  613;  2  Starkie,  Ev.  (;th  Am.  Ed.)  586,  588,  mi,  1112; 
Broom,  Leg.  Max.  40,  48;  Yates  v.  Lansing,  5  Johns.  282,  affirmed 
in  error,  9  Johns.  396,  6  Am.  Dec.  290;  Cunningham  v.  Bucklin,  8 
Cow.  178,  18  Am.  Dec.  432;  Easton  v.  Calendar,  n  Wend.  90;  Wil- 
son v.  Mayor,  etc.,  I  Denio,  598,  43  Am.  Dec.  719;  Stowball  v.  An- 
sell,  Comb.  116;  Garnett  v.  Ferrand,  6  Barn.  &  C.  611;  opinion  of 
North,  C.  J.,  in  Barnardiston  v.  Soame,  in  the  exchequer  chamber, 
6  State  Tr.  1063,  and  in  I  East,  568,  note;  opinion  of  Burrough,  J., 
in  Duke  of  Newcastle  v.  Clark,  8  Taunt.  602 ;  Case  of  Floyd  &  Bar- 
ker, 12  Coke,  23;  Evans  v.  Foster,  I  N.  H.  377;  Dicas  v.  Lord 
Brougham,  6  Car.  &  P.  249;  Gwinne  v.  Poole,  2  Lutw.  387;  Brittain 
v.  Kinnaird,  I  Brod.  &  B.  432;  Bigelow  v.  Stearns,  19  Johns.  39,  10 
Am.  Dec.  189 ;  Doswell  v.  Impey,  i  Barn.  &  C.  163. 

The  judgment  of  the  common  pleas  should  be  affirmed. 

Judgment  affirmed. 

(In  East  River  Gaslight  Co.  v.  Donnelly,  93  N.  Y.  557,  it  is  said  that  "no 
public  officer  is  responsible  in  a  civil  suit  for  a  judicial  determination,  how- 
ever erroneous  or  wrong  it  may  be,  or  however  malicious  even  the  motive 
which  produced  it  The  principle  upon  which  the  rule  rests  was  applied  in 
the  case  of  Weaver  v.  Devendorf,  3  Denio,  117,  and  sustained  by  a  great 
array  of  authorities."  See  also  Steele  v.  Dunham,  26  Wis.  393.  In  some 
states,  however,  election  judges  are  liable  civilly,  if,  in  determining  a  man's 
right  to  vote,  they  act  maliciously  and  corruptly.  Friend  v.  Hamill,  34  Md. 
298;  Cooley  on  Torts  [2d  Ed.]  484,  485. 

Tax  assessors  and  other  quasi  judicial  officers  are  liable  if  they  act  without 
jurisdiction,  and  they  cannot  acquire  jurisdiction  by  deciding  that  they  have 
it  Dora  v.  Backer,  61  N.  Y.  267,  note ;  Williams  v.  Weaver,  75  N.  Y.  30.  See 
1  Dillon  on  Mun.  Corp.  [4th  Ed.]  §  238.) 


LIABILITY    OF    PUBLIC   OFFICERS   FOR   OFFICIAL   ACTS.  539 


II.  MINISTERIAL  OFFICERS. 

(46  N.  Y.  194.) 

MCCARTHY  et  ai.  v.  CITY  OF  SYRACUSE. 

(Court  of  Appeals  of  New  York.    September  15,  1871.) 

1.  MUNICIPAL  CORPORATIONS — CONSTRUCTION  AND  REPAIR  OF  SEWERS. 

When  the  duty  is  imposed  by  law  on  the  mayor  and  common  council  of 
a  city  to  make  and  repair  sewers  in  the  city,  an  entire  omission  to  con- 
struct a  sewer,  or  a  failure  to  make  it  of  sufficient  size,  creates  no  liability 
on  the  part  of  the  city,  as  the  duty  of  determining  where  sewers  shall  be 
located  and  their  dimensions  is,  in  its  nature,  judicial ;  but  where  a  sewer 
has  been  determined  upon,  and  is  constructed,  the  duties  of  constructing 
it  properly,  and  keeping  it  in  good  condition  and  repair,  are  ministerial, 
and  negligence  in  the  performance  of  these  duties  will  render  the  city 
liable  for  damages  resulting  therefrom. 

2.  SAME— NOTICE  OF  DEFECT. 

The  duty  of  the  city  to  keep  its  sewers  in  repair  involves  the  exercise 
of  a  reasonable  degree  of  watchfulness  in  ascertaining  their  condition  from 
time  to  time,  and  preventing  them  from  becoming  dilapidated  or  ob- 
structed ;  and  omitting  to  make  the  examination  necessary  to  guard 
against  an  obstruction  or  dilapidation  of  the  sewer,,  which  is  an  ordinary 
result  of  its  use  and  might  have  been  discovered  on  inspection,  is  a  neglect 
of  duty  which  renders  the  city  liable  for  damages  thereby  caused,  although 
none  of  its  officials  had  notice  that  the  sewer  was  obstructed  or  out  of  re- 
pair. 

Appeal  from  Supreme  Court,  General  Term,  Fifth  Judicial  Dis- 
trict. 

Action  by  Dennis  McCarthy  and  others  against  the  city  of  Syracuse 
for  damages  to  plaintiffs'  goods  in  a  basement  room  of  their  store 
in  said  city.  The  basement  extended  under  the  sidewalks  of  the  streets 
on  which  the  store  was  situated,  and  was  flooded  with  water  from  a 
sewer  in  said  streets,  constructed  by  the  city,  and  plaintiffs'  goods 
were  injured  thereby.  Upon  trial  before  a  referee,  he  found  in  favor 
of  plaintiffs,  and  judgment  was  entered  on  his  report,  and  affirmed 
by  the  general  term  on  appeal.  Defendant  appealed  from  the  judg- 
ment of  the  general  term. 

RAPALLO,  J.  The  principle  appears  to  be  settled  in  this  state 
that,  where  a  duty  of  a  ministerial  character  is  imposed  by  law  upon 
a  public  officer  or  corporation,  a  negligent  omission  to  perform  that 
duty  creates  a  liability  on  the  part  of  such  officer  or  corporation  for 
the  damages  which  individuals  may  sustain  by  reason  of  such  omis- 
sion, and  that  such  liability  may  be  enforced  in  a  civil  action  by  the 
party  injured.  Adsit  v.  Brady,  4  Hill,  630,  40  Am.  Dec.  305 ;  Robinson 
v.  Chamberlain,  34  N.  Y.  389,  90  Am.  Dec.  713 ;  Hutson  v.  Mayor, 
etc.,  9  N.  Y.  169,  59  Am.  Dec.  526 ;  Insurance  Co.  v.  Baldwin,  37  N. 


540  LAW   OF   TOUTS. 

Y.  648;  Hover  v.  Barkhoof,  44  N.  Y.  113;  Barton  v.  City  of  Syra- 
cuse, 36  N.  Y.  54. 

The  charter  of  the  city  of  Syracuse,  which  was  in  evidence  on  the 
trial  of  this  action,  contains  provisions  making  it  the  duty  of  the 
mayor  and  common  council  to  make,  open,  regulate,  repair,  and  im- 
prove sewers  in  said  city;  and  it  is  found  by  the  referee  that,  at  the 
time  of  the  injury,  they  employed  a  superintendent  and  deputies  to 
take  care  of  the  streets  and  sewers,  and  keep  them  in  repair.  It  was 
decided  in  the  case  of  Barton  v.  The  City  of  Syracuse,  36  N.  Y.  54, 
that,  if  the  city  entered  upon  the  performance  of  this  duty,  negligence 
in  its  performance  created  a  liability  to  the  party  injured,  and  the 
city  was  in  that  case  held  liable  for  damages  sustained  by  a  party 
whose  property  was  injured  by  the  overflow  of  a  sewer,  caused  by  an 
accumulation  of  mud  and  filth. 

The  entire  omission  to  construct  a  sewer,  or  the  failure  to  make  it 
of  sufficient  size,  has  been  held  not  to  create  a  liability  on  the  part  of 
the  city,  for  the  reason  that  the  duty  of  determining  where  sewers 
shall  be  located,  and  their  dimensions,  is  in  its  nature  judicial.  Mills 
v.  City  of  Brooklyn,  32  N.  Y.  489.  But  where  a  sewer  has  been  de- 
termined upon,  and  is  constructed,  all  the  authorities  agree  that  the 
duties  of  constructing  it  properly,  and  keeping  it  in  good  condition 
and  repair,  are  ministerial ;  and  that  negligence  in  the  performance  of 
those  duties  will  render  the  city  liable  for  damages  resulting  there- 
from. Mills  v.  City  of  Brooklyn,  32  N.  Y.  489 ;  Wilson  v.  Mayor,  etc., 
i  Denio,  595,  43  Am.  Dec.  719;  Barton  v.  City  of  Syracuse,  36  N. 

Y.54- 

The  referee  has  found  as  facts  that  the  plaintiffs'  premises  were 
flooded,  and  their  goods  damaged,  in  consequence  of  the  inability  of 
the  sewer  in  question  to  carry  off  the  water  which  fell  in  the  street 
during  a  heavy  rain,  and  that  this  inability  of  the  sewer  resulted  from 
its  having  become  obstructed  by  the  falling  down  of  a  portion  of 
the  bricks  of  which  the  inlet  was  constructed,  and  the  accumulation 
upon  such  fallen  bricks  of  mud  and  street  filth,  almost  entirely  closing 
the  inlet;  and  that  the  defendant  was  guilty  of  a  neglect  of  duty  in 
permitting  the  sewer  to  become  obstructed  and  out  of  repair;  and 
that,  by  reason  of  such  negligence,  the  plaintiffs  sustained  the  dam- 
ages for  which  the  judgment  was  rendered.  This  finding  of  a  neglect 
of  duty  on  the  part  of  the  city  officials  is  essential  to  the  plaintiffs' 
case.  Although  the  duty,  under  a  city  charter,  of  keeping  sewers  and 
other  constructions  in  repair,  may  in  one  sense  be  regarded  as  found- 
ed upon  a  contract,  implied  from  the  acceptance  of  the  benefits  of  the 
charter,  to  perform  the  duties  imposed  by  the  same  instrument,  yet 
the  obligation  has  not,  in  any  of  the  cases,  been  extended  beyond 
that  of  exercising  due  diligence.  No  case  has  gone  so  far  as  to  hold 
that  there  is  an  absolute  undertaking  or  guaranty,  on  the  part  of  the 
corporation,  that  these  constructions  shall  at  all  times,  and  undei 


LIABILITY   OF    PUBLIC   OFFICERS    FOR   OFFICIAL   ACTS.  541 

all  circumstances,  be  in  proper  condition,  or  to  hold  the  city  respon- 
sible without  some  wrongful  act  or  negligent  omission  on  its  part. 
The  appellant  contends  that  the  uncontroverted  facts  establish  that 
in  this  case  there  was  no  such  negligence,  and  they  rely  mainly  upon 
the  fact  found  by  the  referee,  that  none  of  the  officials  of  the  city  had 
notice  that  the  sewer  was  obstructed  or  out  of  repair.  The  mere 
absence  of  this  notice  does  not  necessarily  absolve  the  city  from  the 
charge  of  negligence.  Its  duty  to  keep  its  sewers  in  repair  is  not 
performed  by  waiting  to  be  notified  by  citizens  that  they  are  out  of 
repair,  and  repairing  them  only  when  the  attention  of  the  officials  is 
called  to  the  damage  they  have  occasioned  by  having  become  dilapi- 
dated or  obstructed ;  but  it  involves  the  exercise  of  a  reasonable 
degree  of  watchfulness  in  ascertaining  their  condition  from  time  to 
time,  and  preventing  them  from  becoming  dilapidated  or  obstructed. 
When  the  obstruction  or  dilapidation  is  an  ordinary  result  of  the  use 
of  the  sewer,  which  ought  to  be  anticipated,  and  could  be  guarded 
against  by  occasional  examination  and  cleansing,  the  omission  to 
make  such  examinations,  to  keep  the  sewers  clear,  is  a  neglect  of  duty 
which  renders  the  city  liable.  Barton  v.  City  of  Syracuse,  37  Barb. 
292 ;  affirmed,  36  N.  Y.  54. 

But  it  is  further  claimed  in  this  case  by  the  appellant  that  the  ob- 
struction was  caused  by  the  falling  in  of  the  bricks  of  which  the  inlet 
was  built,  and  that  these  bricks  must  have  fallen  in  during  the  ex- 
traordinarily heavy  rain  which  resulted  in  the  damage  in  question, 
or  during  a  shower  which  occurred  a  few  hours  previously  and  on  the 
same  day.  The  referee  has  not  found,  nor  does  the  evidence  disclose 
with  certainty,  when  this  falling  in  occurred.  It  is  argued,  from  the 
fact  that  during  the  first  shower  no  water  came  into  the  plaintiffs' 
premises,  that  the  sewer  was  then  in  good  order.  But  that  is  not  a 
necessary  sequence.  The  sewer  may  have  been  then  partially  ob- 
structed, but  still  have  had  sufficient  capacity  to  carry  off  the  water 
which  fell  at  that  time,  or  enough  of  it  to  protect  the  plaintiffs'  prem- 
ises. The  street  had  been  flooded  in  previous  rains  without  injury 
to  the  plaintiffs.  Neither  was  it  shown  that  this  falling  in  of  the  bricks 
was  not  caused  by  some  negligence  in  the  construction  of  the  sewer. 
If  the  appellants  had  shown  that  the  sewer  was  constructed  in  a 
workmanlike  manner,  and  that  care  had  been  exercised  to  keep  it  in 
proper  order,  and  that,  notwithstanding  this  care,  it  had  caved  in, 
then  their  want  of  notice  of  the  injury  in  season  to  repair  it  would 
have  excused  them,  and  this  court  would  be  justified  in  reversing  the 
finding  of  negligence.  But  nothing  was  shown  as  to  the  mode  of  con- 
struction of  the  sewer,  nor  was  it  proved  that  any  examination  of  it 
had  ever  been  made  since  it  was  built.  How  long  it  had  been  falling 
into  the  condition  in  which  it  was  finally  found,  or  from  what  cause 
it  became  so  dilapidated,  are  left  to  conjecture.  The  referee  has  found 
that  the  obstruction  might  have  been  discovered  on  inspection,  and 


542  LAW  OF  TORTS. 

that  the  city  was  negligent  in  permitting  the  sewer  to  become  ob- 
structed and  out  of  repair ;  and,  although  it  may  be  that  the  evidence 
would  have  justified  a  different  conclusion,  we  do  not  think  the  case 
sufficiently  clear  to  authorize  us  to  reverse  the  finding  of  the  referee, 
on  the  ground  that  there  is  no  evidence  to  sustain  it. 

The  excavation  by  the  plaintiffs  was  not  unlawful.  They  owned  to 
the  center  of  the  street,  subject  to  the  right  of  way  of  the  public  over 
the  surface.  For  any  interference  with  this  right  of  way  the  plaintiffs 
would  have  been  responsible.  But,  so  long  as  they  did  no  injury  to 
the  street,  they  were  at  liberty  to  use  the  space  under  it,  as  they 
might  any  other  part  of  their  property.  They  were  not  hound  to 
leave  the  earth  there,  as  a  protection  against  a  possible  overflow 
of  the  sewer.  The  question  whether  the  damage  was  caused  by  the 
stoppage  of  the  sewer  was  one  of  fact.  There  was  evidence  from 
which  that  inference  could  be  drawn,  and  we  cannot  review  the  con- 
clusion of  the  referee  in  that  respect.  The  judgment  should  be  af- 
firmed, with  costs. 

CHURCH,  C.  J.,  and  ALLEN  and  PECKHAM,  JJ.,  concurred. 
GROVER  and  FOLGER,  JJ.,  dissented.  ANDREWS,  J.,  did  not 
vote. 

Judgment  affirmed. 

(See,  further,  as  to  the  distinction  between  the  judicial  and  ministerial 
powers  of  municipal  corporations,  Hardy  v.  City  of  Brooklyn,  90  N.  Y.  435,  43 
Am.  Rep.  182 ;  Urquhart  v.  City  of  Ogdensburg,  91  N.  Y.  67,  43  Am.  Rep.  655 ; 
2  Dillon  on  Mun.  Corp.  [4th  Ed.]  §§  1046-1051,  where  a  large  number  of  au- 
thorities is  collected. 

This  distinction  In  regard  to  officers  is  well  set  forth  in  People  v.  Bartels. 
138  111.  322,  27  N.  E.  1091,  as  follows:  "A  judicial  officer  will  not  be  held 
liable  for  an  act  done  by  him  in  the  exercise  of  his  judicial  functions,  if  the 
act  is  within  the  scope  of  his  jurisdiction.  Official  action  is  judicial  where 
it  is  the  result  of  judgment  or  discretion.  When  the  officer  has  authority  to 
hear  and  determine  the  rights  of  person  or  property,  or  the  propriety  of  doing 
an  act,  he  is  vested  with  judicial  power.  *  *  *  But  where  the  duty  im- 
posed on  an  officer  Is  purely  ministerial,  he  will  be  held  liable  for  an  injury 
to  another  which  results  from  his  failure  to  perform  it,  or  from  his  per- 
formance of  it  in  a  negligent  or  unskillful  manner.  *  *  *  Official  action 
is  ministerial  when  It  is  the  result  of  performing  a  certain  and  specific  duty 
arising  from  fixed  and  definite  facts.  The  same  officer  may  be  charged  with 
the  performance  of  both  judicial  and  ministerial  duties,  and  when  he  is  in  the 
exercise  of  his  ministerial  functions  only,  he  is,  of  course,  not  protected  by 
the  judicial  privilege."  Another  good  statement  of  the  distinction  is  in  People 
v.  Commissioners,  149  N.  Y.  26,  43  N.  E.  418.  See  also  Raynsford  v.  Phelps, 
43  Mich.  342,  5  N.  W.  403,  38  Am.  Rep.  189;  Amy  v.  Supervisors,  13  Wall. 
136,  20  L.  Ed.  101 ;  Grider  v.  Tally,  77  Ala.  422,  54  Am.  Rep.  65.) 


LIABILITY    OF   PUBLIC   OFFICERS   FOR   OFFICIAL   ACTS.  543 

(110  Mass.  474,  14  Am.  Rep.  613.) 

KEENAN  v.  SOUTHWORTH. 
(Supreme  Judicial  Court  of  Massachusetts.    October  Term,  1872.) 

POSTMASTER— NEGLIGENCE  OF  CLEBK. 

A  postmaster  is  not  liable  for  the  loss  of  a  letter  occasioned  by  the 
negligence  or  wrongful  conduct  of  his  clerk,  appointed  and  sworn  as  re- 
quired by  law,  although  selected  by  him  and  subject  to  his  orders. 

Case  reserved  from  Superior  Court. 

Action  of  tort  by  James  H.  Keenan  against  John  T.  Southworth, 
postmaster  of  East  Randolph,  for  damages  for  the  loss  of  a  letter 
addressed  to  plaintiff.  At  the  trial  evidence  was  given  for  plaintiff 
tending  to  show  that  the  letter  was  received  at  the  post-office  at  East 
Randolph,  and  was^  lost  by  the  negligence  or  wrongful  conduct  of 
one  Bird,  who  was  the  postmaster's  clerk.  Plaintiff  disclaimed  "any 
actual  participancy  or  knowledge  of  the  acts  of  Bird  on  the  part  of 
the  defendant."  The  judge  ruled  that  defendant  was  not  liable  for 
any  careless,  negligent,  or  wrongful  acts  of  Bird ;  and,  by  consent  of 
plaintiff,  he  directed  a  verdict  for  defendant,  and  reported  the  case 
for  the  consideration  of  the  court ;  if  the  ruling  was  wrong,  the  verdict 
to  be  set  aside,  and  the  case  to  stand  for  trial ;  otherwise,  judgment 
for  defendant  on  the  verdict. 

GRAY,  J.  The  law  is  well  settled  in  England  and  America  that 
the  postmaster  general,  the  deputy-postmasters,  and  their  assistants 
and  clerks,  appointed  and  sworn  as  required  by  law,  are  public  officers, 
each  of  whom  is  responsible  for  his  own  negligence  only,  and  not  for 
that  of  any  of  the  others,  although  selected  by  him,  and  subject  to  his 
orders.  Lane  v.  Cotton,  I  Ld.  Raym.  646,  12  Mod.  472;  Whitfield 
v.  Le  De  Spencer,  Cowp.  754;  Dunlop  v.  Munroe,  7  Cranch,  242,  3 
L.  Ed.  329;  Schroyer  v.  Lynch,  8  Watts,  453 ;  Bishop  v.  Williamson, 
II  Me.  495;  Hutchins  v.  Brackett,  22  N.  H.  252,  53  Am.  Dec.  248. 
The  ruling  at  the  trial  was  therefore  right,  and  the  plaintiff,  having 
consented  to  a  verdict  for  the  defendant,  reserving  only  the  correct- 
ness of  the  ruling,  cannot  now  raise  the  question  whether  there  was 
sufficient  evidence  of  the  defendant's  own  negligence  to  be  submitted 
to  the  jury. 

Judgment  on  the  verdict. 

(See  also  Teall  v.  Felton,  1  N.  Y.  537,  49  Am.  Dec.  352 ;  t  Id.,  12  How.  285, 
13  L.  Ed.  990 ;  Wiggins  v.  Hathaway,  6  Barb.  632 ;  Tracy  v.  Cloyd,  10  W.  Va. 
19.  It  is  held,  however,  that  a  postmaster  who  employs  a  clerk  or  assistant, 
independent  of  express  authority,  who  is  paid  by  him  out  of  his  own  salary 
or  means,  is  liable  for  the  default  or  misfeasance  of  his  clerk  or  assistant,  as 
any  private  person  would  be  for  the  acts  of  his  agent  or  employee.  Raisler  v. 
Oliver,  97  Ala.  710,  12  South.  238,  38  Am.  St  Rep.  213.) 


544  LAW  OF  TORTS. 

(30  Cal.  190.) 

BOULWARE  v.  CRADDOCK,  Constable,  et  al.  (in  part). 
(Supreme  Court  of  California.     July  Term,  1866.) 

rfHEBMTS   AND   CONSTABLES— WfiONGFUL   SEIZUBE   OF   PfiOPEBTY   TJNDEB   EXECU- 
TION. 

A  sheriff  or  constable  who,  under  an  execution,  seizes  and  sells  property 
not  belonging  to  the  execution  debtor,  although  in  his  possession,  is  a  mere 
trespasser,  and  liable  to  an  action  by  the  owner  of  the  property  without 
any  demand  before  suit. 

Appeal  from  District  Court,  Tenth  Judicial  District,  Sutter  County. 

Action  by  W.  Boulware  against  C.  C.  Craddock,  a  constable,  and 
James  O.  Harris  and  Samuel  H.  Pippin,  his  bondsmen,  to  recover  the 
value  of  two  horses  alleged  to  have  been  wrongfully  seized  and  sold 
by  Craddock  as  such  constable.  At  the  trial  it  appeared  that  plaintiff 
was  the  owner  of  the  horses,  and  that  they  had  strayed  away  from  his 
premises,  and  that  afterwards  one  Eaton  had  taken  them  into  his  pos- 
session ;  that  defendant  Craddock,  as  constable,  having  received  an 
execution  against  Eaton,  finding  the  horses  in  Eaton's  possession, 
and  supposing  they  were  his  property,  seized  and  sold  them  as  Eaton's 
property;  that  plaintiff  was  not  informed  of  the  seizure  and  sale  of 
his  horses  until  15  days  after  the  sale,  when  he  informed  Craddock 
that  he  owned  the  horses,  and  asked  him  where  they  were,  and  Cracl- 
,dock  told  him  who  the  purchaser  was  and  where  he  lived.  Plaintiff 
did  not  make  any  demand  on  Craddock  for  the  horses  or  their  value 
before  bringing  suit.  The  court  below  held  that  a  demand  was  nec- 
essary to  entitle  plaintiff  to  recover,  and  gave  judgment  for  defend- 
ants. Plaintiff  appealed. 

SHAFTER,  J.  In  an  action  against  a  sheriff  for  a  seizure  and 
conversion  of  the  plaintiff's  property,  taken  under  process  against  a 
third  person,  a  demand  upon  the  defendant  prior  to  the  bringing  of 
the  suit  is  not  necessary  to  a  recovery.  The  sheriff,  having  misap- 
plied his  process,  (and  whether  by  mistake  or  design  will  make  no 
difference,)  stands  in  the  position  of  every  other  trespasser,  and  is  lia- 
ble to  an  action  the  instant  the  trespass  is  committed.  The  circum- 
stance that  the  property  was  in  the  possession  of  the  execution  debtor 
at  the  date  of  the  seizure  amounts  to  nothing  except  upon  proof  of 
fraud  or  commixture.  The  rule  of  the  common  law  is  correctly  stated 
in  Ledley  v.  Hays,  I  Cal.  160,  and  the  correctness  of  that  decision  is 
impliedly  recognized  in  Daumiel  v.  Gorham,  6  Cal.  44.  See  also  Cod- 
man  v.  Freeman,  3  Cush.  314,  and  Acker  v.  Campbell,  23  Wend.  372. 


LIABILITY    OF    PUBLIC   OFFICERS   FOR   OFFICIAL   ACTS.  545 

The  judgment  is  reversed,  and  the  court  below  is  directed  to  ren- 
der judgment  upon  the  findings  in  favor  of  the  plaintiff. 

RHODES,  J.,  expressed  no  opinion. 

(See,  to  the  same  effect,  State  v.  Koontz,  83  Mo.  323;  Buck  v.  Colbath,  3 
Wall.  334,  18  L.  Ed.  257 ;  Rankin  v.  Ekel,  64  Cal.  44G,  1  Pac.  895 ;  Symonds 
v.  Hall,  37  Me.  354,  59  Am.  Dec.  53 ;  Welsh  v.  Cochran,  63  N.  Y.  181,  20  Am. 
Rep.  519.) 


(34  Minn.  92,  24  N.  W.  327.) 

WELSH  v.  WILSON. 
(Supreme  Court  of  Minnesota.    July  24,  1885.) 

L  SHERIFFS  AND  CONSTABLES— LEVY  OF  EXECUTION— BREAKING  OUTEB  DOOB 
OF  DWELLING. 

Plaintiff  occupied  as  her  dwelling,  a  building  containing  only  one  room, 
and  also  carried  on  there  her  trade  as  a  milliner,  and  kept  and  exposed 
for  sale  a  stock  of  goods.  Held,  that  the  fact  that  she  so  used  it  to  transact 
her  business  did  not  change  its  character  as  her  dwelling,  and  that  the 
sheriff,  having  an  execution  against  her,  was  not  authorized  to  break  the 
outer  door  for  the  purpose  of  levying  upon  her  goods,  and  such  levy  was 
invalid. 

2.  SAME— MITIGATION  OF  DAMAGES. 

In  an  action  for  such  wrongful  levy,  it  could  not  avail  the  sheriff,  in 
mitigation  of  damages,  that  he  sold  the  goods  and  paid  the  proceeds  to 
the  execution  creditor ;  the  levy  itself  being  invalid,  every  subsequent  act 
based  on  it  was  but  a  continuation  and  aggravation  of  the  original  tres- 
pass. 

Appeal  from  District  Court,  Waseca  County. 

Action  by  Kate  G.  Welsh  against  Hugh  Wilson,  sheriff  of  Waseca 
county,  for  an  alleged  wrongful  levy  of  an  execution  on  plaintiff's 
goods.  From  a  judgment  for  plaintiff,  rendered  upon  a  trial  by  jury, 
defendant  appealed. 

GILFILLAN,  C.  J.  Plaintiff  occupied  in  Waseca  a  building  one- 
story  high,  of  only  one  room.  In  this  she  with  her  daughter  slept, 
and  did  upon  a  kerosene  stove  what  cooking  she  did,  but  usually  got 
their  meals  at  a  restaurant.  In  it  she  also  pursued  her  trade  as  a 
milliner,  and  kept  in  it  for  sale,  and  exposed  for  sale,  a  stock  of  mil- 
linery goods.  It  was  fitted  up  like  a  store,  with  shelves,  tables  for 
counters,  show-cases  on  the  tables,  and  one  in  fr,ont,  on  and  in  which 
her  goods  were  kept  for,,sale.  The  defendant,  sheriff  of  the  county, 
having  an  execution  against  her  property,  went  about  10  o'clock  in 
the  morning  to  the  building,  the  door  of  which  was  then  locked,  put 
his  hand  through  the  window,  a  pane  of  which  was  broken,  took  the 
CHASE  (2o  ED.)— 35 


546  LAW  OF  TORTS. 

lock  off  the  door,  entered,  and  levied  on  and  removed  her  goods.  The 
validity  of  the  levy  is  only  in  question. 

The  room  must  be  taken  to  have  been  the  plaintiff's  dwelling, — her 
abode, — not  merely  when  closed  to  business,  but  at  all  times  when 
she  occupied  it  for  her  dwelling.  The  fact  that  she  also  used  it  to 
transact  her  business  did  not  change  its  character  in  that  respect. 
It  being  her  dwelling,  it  was  unlawful  for  the  sheriff  to  break  the 
outer  door  to  effect  an  entrance  for  the  purpose  of  serving  civil  pro- 
cess. This  proposition  has  never  been  doubted,  either  in  England  or 
in  this  country.  It  is  also  well  settled  in  this  country — there  being 
no  authority  to  the  contrary — that  no  valid  levy  can  be  made  by  means 
of  such  unlawful  entry.  We  may  perhaps  regret  that  such  is  the  rule, 
— may  be  able  to  see  that  unfortunate  consequences  will  sometimes 
result  from  it, — but  it  is  too  firmly  established  to  be  disturbed,  except 
•by  act  of  the  legislature.  The  levy  being  invalid,  nothing  which  the 
sheriff  did  pursuant  to  it  was  valid.  Every  subsequent  act  based  on 
the  levy,  and  depending  on  it  for  its  lav/fulness,  was  but  a  continuation 
and  aggravation  of  the  original  trespass.  It  can  therefore  be  of  no 
avail  to  the  sheriff  that  he  sold  the  goods,  and  paid  the  proceeds  to 
the  execution  creditor.  In  the  cases  where,  as  in  Howard  v.  Mander- 
field,  31  Minn.  337,  17  N.  W.  946,  such  subsequent  appropriation  has 
been  allowed  to  operate  in  mitigation  of  damages,  there  has  been  a 
subsequent  valid  levy,  not  connected  with  the  trespass,  which  gave 
validity  to  the  sale  and  appropriation  of  the  proceeds. 

Judgment  affirmed. 

(See  also  Semayne's  Case,  5  Coke,  91a;  Stearns  v.  Vincent,  50  Mich.  209, 
15  N.  W.  86,  45  Am.  Rep.  37 ;  State  v.  Beckner,  132  Ind.  371,  31  N.  E.  950,  32 
Am.  St  Rep.  257 ;  Haggerty  v.  Wilber,  16  Johns.  287,  8  Am.  Dec.  321 ;  Wil- 
liams v.  Spencer,  5  Johns.  352;  Curtis  v.  Hubbard,  4  Hill,  437,  40  Am.  Dec. 
292.  The  officer  may,  however,  break  into  a  shop,  warehouse,  storehouse,  or 
other  outbuilding,  not  connected  with  the  dwelling  house  or  within  the  cur- 
tilage. Hodder  v.  Williams  [1895]  2  Q.  B.  663 ;  Clark  v.  Wilson,  14  R.  I.  11 ; 
Solinsky  v.  Lincoln  Sav.  Bank,  85  Tenn.  368,  4  S.  W.  836.  And  when  he  finds 
the  outer  door  of  the  dwelling  house  open,  and  enters  thereby,  he  can  break 
inner  doors.  Id.) 


(5  Hill,  440.) 

PEOPLE  v.  WARREN. 

(Supreme  Court  of  New  York.    July  Term,  1843.) 

SHERIFFS  AND  CONSTABLES— ARREST  UPON  WARRANT  REGULAR  ON  ITS  PACE. 

A  warrant  regular  on  its  face  is  a  sufficient  authority  to  a  constable  to 
make  the  arrest  commanded  therein,  although  he  has  knowledge  of  facts 
which  render  the  warrant  void  for  want  of  jurisdiction. 

Certiorari  to  Court  of  General  Sessions,  Oneida  County. 
Indictment  against  defendant  for  assault  and  battery  upon  one  John- 
son, a  constable,  in  resisting  arrest  by  Johnson  on  a  warrant,  issued 


LIABILITY    OP    PUBLIC    OFFICERS    FOR   OFFICIAL   ACTS.     »        547 

by  the  inspectors  of  election  of  the  city  of  Utica  against  defendant  for 
interrupting  the  proceedings  at  an  ele'ction  by  disorderly  conduct  in 
the  presence  of  the  inspectors,  i  Rev.  St.  N.  Y.  p.  137,  §  37.  The 
warrant  was  regular  and  sufficient  upon  its  face.  Defendant  offered 
to  prove  that  he  had  not  been  in  the  hearing  or  presence  of  the  in- 
spectors at  any  time  during  the  election,  and  that  Johnson  knew  it. 
The  court  excluded  the  evidence,  and  defendant  was  convicted,  and 
moved  for  a  new  trial  on  a  bill  of  exceptions. 

PER  CURIAM.  Although  the  inspectors  had  no  jurisdiction  of 
the  subject-matter,  yet,  as  the  warrant  was  regular  upon  its  face,  it 
was  a  sufficient  authority  for  Johnson  to  make  the  arrest,  and  the 
defendant  had  no  right  to  resist  the  officer.  The  knowledge  of  the 
officer  that  the  inspectors  had  no  jurisdiction  is  not  important.  He 
must  be  governed  and  is  protected  by  the  process,  and  cannot  be 
affected  by  anything  which  he  has  heard  or  learned  out  of  it.  There 
are  some  dicta  the  other  way ;  but  we  have  held  on  several  occasions 
that  the  officer  is  protected  by  process  regular  and  legal  upon  its  facer 
whatever  he  may  have  heard  going  to  impeach  it.  Webber  v.  Gay, 
24  Wend.  485 ;  Watson  v.  Watson,  9  Conn.  140,  23  Am.  Dec.  324. 

New  trial  denied. 

(The  general  rule  that  sheriffs,  constables,  and  similar  officers  are  protected 
in  executing  process,  if  the  process  issue  from  a  court  or  judge  having  general 
jurisdiction  over  the  subject-matter  and  authority  of  law  to  issue  process  ol 
that  nature,  and  if  the  process  be  "fair  on  its  face,"  is  considered  ante,  at 
pages  239-241.  Additional  valuable  cases  are  Woolsey  v.  Morris,  96  N.  Y.  311, 
315 ;  Barr  v.  Boyles,  96  Pa.  31 ;  Mangold  v.  Thorpe,  33  N.  J.  Law,  134 ;  Jen 
nings  v.  Thompson,  54  N.  J.  Law,  55,  22  Atl.  1008  [an  important  case] ;  Thurs 
ton  v.  Adams,  41  Me.  419 ;  Rousey  v.  Wood,  47  Mo.  App.  465.  The  additionaJ 
feature  in  People  v.  Warren  was  that  the  officer  had  knowledge  of  facts 
showing  that  there  was  no  jurisdiction  over  the  person  against  whom  the  pro- 
cess was  directed.  It  is  still  held  in  New  York  that  the  officer  is  protected  in 
executing  process  under  such  circumstances.  Young  v.  Stone,  33  App.  Div. 
261,  53  N.  Y.  Stfpp.  656.  In  Ohio  it  is  held  that  he  is  not  obliged  to  serve  sucli 
process,  but  that  he  will  be  justified  if  he  does  serve  it.  Henline  v.  Reese, 
54  Ohio  St.  599,  44  N.  E.  269,  56  Am.  St.  Rep.  736.  In  a  few  states,  however, 
the  officer  renders  himself  liable  by  enforcing  such  process.  Tellefsen  v.  Fee, 
168  Mass.  188,  46  N.  E.  562,  45  L.  R.  A.  481,  60  Am.  St.  Rep.  379;  Grace  v 
Mitchell,  31  Wis.  533,  11  Am.  Rep.  613;  Leachman  v.  Dougherty,  81  111.  324. 
See  Cooley  on  Torts  [2d  Ed.]  544-547.) 


548  LAW  OF  TORTS' 


CRIMINAL    CONVERSATION    AND 
SEDUCTION. 


(134  Mass.  123,  45  Am.  Rep.  307.) 

BIGAOUETTE  v.  PAULET. 
(Supreme  Judicial  Court  of  Massachusetts.    Suffolk.    January  3,  1883.) 

CRIMINAL  CONVERSATION— GROUNDS  OF  ACTION  BY  HUSBAND. 

An  action  may  be  maintained  by  a  husband  for  the  loss  of  consortium 
with  his  wife  which  is  implied  from  criminal  conversation  of  the  defend- 
ant with  her,  whether  defendant's  act  was  with  or  against  her  will,  and 
although  it  may  have  caused  no  actual  loss  of  her  services  to  her  husband. 

Exceptions  from  Superior  Court. 

Action  of  tort  by  Noel  Bigaouette  against  Henry  Paulet  in  four 
counts.  The  first  count  was  for  seduction  of  plaintiff's  wife ;  the  sec- 
ond and  fourth  were  for  assaults  upon  her,  and  the  third  was  for  a 
rape;  whereby  plaintiff  lost  her  comfort,  assistance,  society,  and  ben- 
efit. A  bill  of  exceptions,  allowed  by  the  trial  judge,  was,  in  sub- 
stance, as  follows :  The  only  witnesses  were  plaintiff  and  his  wife. 
The  wife  testified  that  plaintiff  was  a  workman  in  the  factory  of  the 
Smith  American  Organ  Company,  in  a  subordinate  capacity,  under 
defendant,  and  that  they  were  in  the  habit  of  visiting  each  other  oc- 
casionally with  their  wives  ;  that  on  some  occasions,  previously  to  July 
5,  1876,  defendant  told  plaintiff's  wife  that  he  would  turn  her  husband 
away  from  the  factory,  if  she  refused  to  receive  defendant's  visits ; 
that  on  July  5,  1876,  defendant  violently  and  forcibly  ravished  her, 
and  that  he  also  immediately  showed  her  a  pistol,  and  threatened 
to  shoot  her  if  she  should  ever  tell  her  husband ;  that  she  was  at  that 
time  four  months  pregnant  with  child ;  that  her  child  was  born  on 
December  n,  1876;  that  on  December  16,  1876,  she  first  told  her 
husband  of  what  had  occurred  between  her  and  defendant,  and  three 
days  afterwards  plaintiff  was  discharged  from  the  factory  by  defend- 
ant; that  shortly  after  July  5,  1876,  plaintiff  saw  black  and  blue  marks 
on  his  wife's  arms  and  legs,  and  observed  that  she  was  ill;  that  she 
had  no  physician,  and  they  kept  no  servant  to  assist  her,  and  that  she 
attended  to  and  performed  her  ordinary  domestic  duties  in  her  hus- 
band's family  up  to  the  time  of  her  confinement,  but  that  her  per- 
formance of  these  duties  was  attended  with  pain  and  difficulty  to  her- 
self. The  plaintiff  also  testified  to  some  of  the  above  facts,  and  then 
rested  his  case.  The  defendant  contended,  the  foregoing  being  all 
the  material  testimony  in  the  case,  that  there  was  not  sufficient  evi- 
dence of  loss  of  the  wife's  services  to  enable  the  plaintiff  to  maintain 


CRIMINAL   CONVERSATION    AND   SEDUCTION.  54'.) 

this  action.  The  judge  ruled  that  as  there  was  no  evidence  to  support 
the  count  charging  defendant  with  seducing  plaintiff's  wife,  and  as  the 
evidence  applicable  to  the  counts  for  assault  and  rape  proved  that  no 
loss  of  service  was  caused  to  plaintiff,  the  action  could  not  be  main- 
tained, and  directed  a  verdict  for  defendant.  Plaintiff  alleged  excep- 
tions. 

W.  ALLEN,  J.  The  plaintiff  cannot  maintain  this  action  for  an 
injury  to  the  wife  only.  He  must  prove  that  some  right  of  his  own 
in  the  person  or  conduct  of  his.  wife  has  been  violated.  A  husband 
is  not  the  master  of  his  wife,  and  can  maintain  no  action  for  the  loss 
of  her  services  as  his  servant.  His  interest  is  expressed  by  the  word 
"consortium," — the  right  to  the  conjugal  fellowship  of  the  wife,  to 
her  company,  co-operation,  and  aid  in  every  conjugal  relation.  Some 
acts  of  a  stranger  to  a  wife  are  of  themselves  invasions  of  a  husband's 
right,  and  necessarily  injurious  to  him ;  others  may  or  may  not  injure 
him,  according  to  their  consequences ;  and,  in  such  cases,  the  in- 
jurious consequences  must  be  proved,  and  it  must  be  shown  that  the 
husband  actually  lost  the  company  and  assistance  of  his  wife.  This 
is  illustrated  in  the  statements  of  injuries  to  a  husband  in  3  Bl.  Comm. 
139,  140,  where  such  injuries  are  said  to  be  principally  three :  "Ab- 
duction, or  taking  away  a  man's  wife ;  adultery,  or  criminal  conversa- 
tion with  her ;  and  beating  or  otherwise  abusing  her."  The  first  two 
are  of  themselves  wrongs  to  the  husband,  and  his  remedy  is  by  ac- 
tion of  trespass  vi  et  armis.  In  regard  to  the  other,  the  author's 
words  are:  "If  it  be  a  common  assault,  battery,  or  imprisonment, 
the  law  gives  the  usual  remedy  to  recover  damages,  by  action  of 
trespass  vi  et  armis,  which  must  be  brought  in  the  names  of  the  hus- 
band and  wife  jointly;  but  if  the  beating  or  other  maltreatment  be 
very  enormous,  so  that  thereby  the  husband  is  deprived  for  any  time 
of  the  company  and  assistance  of  the  wife,  the  law  then  gives  him  a 
separate  remedy  by  an  action  of  trespass,  in  nature  of  an  action  upon 
the  case,  for  this  ill  usage,  per  quod  consortium  amisit,  in  which  he 
shall  recover  a  satisfaction  in  damages."  He  states,  as  one  of  the  cir- 
cumstances affecting  the  damages  in  an  action  for  adultery,  "the  seduc- 
tion or  otherwise  of  the  wife,  founded  on  her  previous  behavior  and 
character." 

It  is  usual  in  actions  for  criminal  conversation  to  allege  the  seduc- 
tion of  the  wife,  and  the  consequent  alienation  of  her  affections,  and 
loss  of  her  company  and  assistance,  and  sometimes  of  her  services ; 
but  these  are  matter  of  aggravation,  except  so  far  as  they  are  the 
statement  of  a  legal  inference  from  the  fact  itself,  and  actual  proof 
of  them  is  not  necessary  to  the  husband's  right  of  action.  The  loss 
of  the  consortium  is  presumed,  although  the  wife  may  have  herself 
been  the  seducer,  or  may  not  have  been  living  with  the  husband.  A 
husband  who  is  living  apart  from  his  wife,  if  he  has  not  renounced  his 


550  LAW  OF  TORTS. 

marital  rights,  can  maintain  the  action ;  and  it  is  not  necessary  for  him 
to  prove  alienation  of  the  wife's  affection,  or  actual  loss  of  her  society 
and  assistance.  See  Chambers  v.  Caulfield,  6  East,  244;  Wilton  v. 
Webster,  7  Car.  &  P.  198 ;  Yundt  v.  Hartrunft,  41  111.  9.  The  essential 
injury  to  the  husband  consists  in  the  defilement  of  the  marriage  bed, 
— in  the  invasion  of  his  exclusive  right  to  marital  intercourse  with  his 
wife,  and  to  beget  his  own  children.  This  presumes  the  loss  of  the 
consortium  with  his  wife,  of  comfort  in  her  society  in  that  respect  in 
which  his  right  is  peculiar  and  exclusive.  Although  actions  of  this 
nature  have  generally  been  brought  where  the  alienation  of  the  wife's 
affections,  and  actual  deprivation  of  her  society  and  assistance,  have 
been  the  prominent  injury  to  the  husband,  yet  it  is  plain  that  the  se- 
duction of  the  wife,  inducing  her  to  violate  her  conjugal  duties,  and 
injuries  arising  from  that,  are  not  the  foundation  of  the  action.  The 
original  and  approved  form  of  action  is  trespass  vi  et  armis,  and, 
though  this  form  was  adopted  when  the  act  was  with  the  consent  of 
the  wife,  it  was  for  the  reason,  as  given  by  Chief  Justice  Holt,  "that 
the  law  indulges  the  husband  with  an  action  of  assault  and  battery  for 
the  injury  done  to  him,  though  it  be  with  the  consent  of  his  wife,  be- 
cause the  law  will  not  allow  her  consent  in  such  case  to  the  prejudice 
of  her  husband,  because  of  the  interest  he  has  in  her."  Rigaut  v. 
Gallisard,  7  Mod.  78,  2  Ld.  Raym.  809,  Holt,  50.  See,  also,  Bac.  Abr. 
"Trespass,"  C  i;  and  Id.  "Marriage,"  F  2;  2  Chit.  PI.  (i3th  Amer. 
Ed.)  855 ;  Reeve,  Dom.  Rel.  63.  The  fact  that  trespass,  and  not  case, 
was  the  form  of  action,  even  when  the  wrong  was  accomplished  by 
the  seduction  of  the  wife,  for  the  reason  that  the  wife  was  deemed 
incapable  of  consent,  and  "force  and  violence  were  supposed  in  law 
to  accompany  this  atrocious  injury,"  indicates  that  the  cause  of  ac- 
tion arose  from  acts  committed  upon  the  person  of  the  wife,  and  not 
from  influences  exerted  upon  her  mind;  that  the  corrupting  of  the 
body,  rather  than  the  mind,  of  the  wife  was  the  original  and  essential 
wrong  to  the  husband. 

We  think  that  this  action  may  be  maintained  upon  th?  evidence 
offered,  not  for  the  actual  loss  of  comfort,  assistance,  society,  and 
benefit  alleged  in  the  second  and  fourth  counts  as  consequences  of 
the  assaults  set  forth  in  them,  but  for  the  loss  of  the  consortium 
with  the  wife  which  is  implied  from  criminal  conversation  with  her, 
whether  with  or  against  her  will. 

Exceptions  sustained. 

(See  also  Jacobsen  v.  Siddal,  12  Or.  280,  1  Pac.  108,  53  Am.  Rep.  360 ;  Wales 
T.  Miner,  89  Ind.  118 ;  Johnston  v.  Disbrow,  47  Mich.  59,  10  N.  W.  79 ;  Heer- 
mance  v.  James,  47  Barb.  120.) 


CRIMINAL  CONVERSATION   AND  SEDUCTION.  551 

(11  N.  Y.  343.) 

MULVEHALL  v.  MILLWARD. 
(Court  of  Appeals  of  New  York.     September  Term,  1854.) 

SEDUCTION— GROUNDS  OF  ACTION  BY  PABENT. 

Plaintiff's  minor  daughter,  who  had  left  his  house  to  work  for  defend- 
ant, was  seduced  "by  the  latter  while  tn  his  employ,  and  became  pregnant 
She  thereafter  worked  at  other  places,  but  did  not  return  to  her  father's 
house,  nor  did  it  appear  that  she  had  any  intention  to  return  there,  until 
after  her  confinement  and  the  birth  of  her  child ;  and  it  was  not  shown  that 
her  father  took  any  care  of  her  or  expended  any  money  on  her  account 
during  her  pregnancy  or  sickness.  Held  that,  as  he  had  not  surrendered 
his  legal  right  to  her  services,  he  could  maintain  an  action  for  her  seduc- 
tion. 

Appeal  from  Superior  Court  of  New  York  City,  General  Term. 

Action  for  the  seduction  of  plaintiff's  daughter  by  defendant.  At 
the  trial,  in  March,  1852,  the  daughter  testified  that  she  was  then  re- 
siding with  her  father,  the  plaintiff,  and  that  she  had  attained  the  age 
of  21  years  in  January,  1852;  that  in  November,  1850,  she  had  left  her 
father,  and  had  gone  to  work  for  defendant ;  that  a  few  weeks  after-' 
wards,  while  in  the  employ  of  defendant,  she  was  seduced  by  him, 
and  became  pregnant ;  that  subsequently,  and  before  the  birth  of  her 
child,  she  worked  for  others ;  and  that  she  was  delivered  of  the  child 
at  another  place.  There  was  no  evidence  that  she  returned  to  her 
father's  from  the  time  she  went  to  work  for  the  defendant  until  after 
her  recovery  from  her  sickness  at  her  confinement,  or  that  her  father 
took  any  care  of  her,  or  expended  any  money  on  her  account,  during 
her  pregnancy  or  sickness.  When  plaintiff  rested,  defendant  moved 
for  a  nonsuit,  on  the  ground  "that  no  expense  or  actual  loss  of  serv- 
ice to  the  plaintiff  had  been  proved."  The  motion  was  denied,  and 
defendant  excepted.  Evidence  was  then  given  for  defendant,  and  the 
cause  submitted  to  the  jury,  which  found  a  verdict  for  plaintiff  for 
$3,000.  Judgment  for  plaintiff  was  entered  on  the  verdict,  and  was 
affirmed  on  appeal  to  the  general  term  of  the  superior  court.  From 
the  judgment  of  the  general  term  defendant  again  appealed. 

EDWARDS,  J.  It  was  proved  upon  the  trial  that  the  plaintiff's 
daughter,  at  the  time  of  her  seduction,  was  in  the  defendant's  serv- 
ice, and  it  did  not  appear  that  there  was  animus  revertendi,  or  that 
she,  in  fact,  returned  to  her  father's  house  until  after  her  confinement. 
Updn  this  state  of  facts  it  was  ^  contended  upon  the  part  of  the  de- 
fendant that,  as  no  expense  or  actual  loss  of  service  on  the  part  of 
the  plaintiff  was  proved,  he  should  be  nonsuited,  and  a  motion  was 
made  to  that  effect,  which  was  overruled.  In  the  case  of  Dean  v. 
Peel,  5  East,  45,  the  plaintiff's  daughter  at  the  time  of  her  seduction 
was  under  age,  but  was  living  in  the  family  of  another  person,  in 


552  LAW  OF  TORTS. 

the  capacity  of  a  housekeeper,  with  no  intention  at  the  time  of  her 
seduction  of  returning  to  her  father's  house,  although  she  did  return 
there  while  she  was  under  age,  in  consequence  of  her  seduction,  and 
was  maintained  by  her  father.  Upon  this  state  of  facts  it  was  held 
that,  as  the  daughter  was  actually  in  the  service  of  another  person 
than  her  father,  and  as  there  was  no  animus  revertendi,  the  action 
could  not  be  maintained.  The  rule  thus  laid  down  has  been  since 
followed  in  the  English  courts.  Blaymire  v.  Haley,  6  Mees.  &  W. 
55 ;  Harris  v.  Butler,  2,  Mees.  &  W.  539 ;  Grinnell  v.  Wells,  7  Man.  & 
G.  1033.  In  a  few  years  after  the  decision  in  Dean  v.  Peel,  a  somewhat 
similar  case  arose  in  this  state,  in  which  it  appeared  that  the  plaintiff's 
daughter,  who  was  under  age,  went,  with  the  consent  of  her  father, 
to  live  with  her  uncle,  for  whom  she  worked  when  she  pleased,  and 
he  agreed  to  pay  her  for  her  work ;  but  there  was  no  agreement  that 
she  should  continue  to  live  in  his  house  for  any  fixed  time.  While 
in  her  uncle's  house  she  was  seduced,  and  got  with  child.  Immedi- 
ately afterwards  she  returned  to  her  father's  house,  where  she  was 
maintained,  and  the  expense  of  her  lying-in  was  paid  by  him.  Upon 
this  state  of  facts  it  was  held,  contrary  to  the  case  above  cited,  that 
the  action  could  be  maintained.  In  delivering  the  opinion  of  the  court, 
Spencer,  C.  J.,  said :  "The  case  of  Dean  v.  Peel  is  against  the  action. 
In  the  present  case  the  father  had  made  no  contract  binding  out  his 
daughter,  and  the  relation  of  master  and  servant  did  exist  from  the 
legal  control  he  had  over  her  services ;  and,  although  she  had  no  in- 
tention of  returning,  that  did  not  terminate  the  relation,  because  her 
volition  could  not  affect  his  rights.  She  was  his  servant  de  jure, 
though  not  de"  facto,  at  the  time  of  the  injury ;  and,  being  his  servant 
de  jure,  the  defendant  has  done  an  act  which  has  deprived  the  father 
of  the  daughter's  services,  and  which  he  might  have  exacted  but  for 
that  injury."  Martin  v.  Payne,  9  Johns.  387,  6  Am.  Dec.  288.  This 
decision  was  afterwards  approved  of  in  Nickleson  v.  Stryker,  10  Johns. 
115,  6  Am.  Dec.  318.  In  the  case  of  Clark  v.  Fitch,  2  Wend.  459,  20 
Am.  Dec.  639,  it  was  proved  upon  the  trial  that  the  plaintiff  told  his 
daughter  that  she  might  remain  at  home  or  go  out  to  service  as  she 
pleased,  but,  if  she  left  his  house,  she  must  take  care  of  herself,  and 
he  relinquished  all  claim  to  her  wages  and  services.  It  was  contended 
that  there  was  a  distinction  between  this  case  and  that  of  Martin  v. 
Payne,  on  the  ground,  (i)  that  the  father  had  given  his  daughter  her 
time  absolutely ;  (2)  that  he  had  in  fact  incurred  no  expense ;  but 
it  was  held  that  this  made  no  difference,  and  that  the  personal  rights 
of  the  father  over  the  child  were  not  relinquished.  In  the  recent  case 
of  Hartley  v.  Richtmyer,  4  N.  Y.  38,  53  Am.  Dec.  338,  Bronson,  C. 
J.,  in  giving  the  opinion  of  the  court,  says  that  "our  cases  hold  that 
the  relation  of  master  and  servant  may  exist  for  the  purposes  of  this 
action,  although  the  daughter  was  in  the  service  of  a  third  person  at 
the  time  of  her  seduction,  provided  the  case  be  such  that  the  father 


CRIMINAL   CONVERSATION   AND   SEDUCTION.  553 

had  then  a  legal  right  to  her  services,  and  might  have  commanded 
them  at  pleasure."  But  it  was  there  held  that  the  step-father  had  no 
such  right,  and  consequently  could  not  maintain  the  action.  In  Penn- 
sylvania a  similar  rule  has  been  adopted.  Hornketh  v.  Barr,  8  Serg. 
&  R.  36,  ii  Am.  Dec.  568;  Plumer  v.  Robertson,  6  Serg.  &  R.  179. 
See,  also,  Mercer  v.  Walmsley,  5  Har.  &  J.  27,  9  Am.  Dec.  486.  And 
Greenleaf,  in  his  treatise  on  Evidence,  lays  it  down  as  the  established 
American  rule.  2  Greenl.  Ev.  §  576.  Whether  it  be  more  or  less 
consistent  with  principle  and  policy  than  the  English  rule  it  is  now 
too  late  to  inquire.  It  is  too  well  established  by  authority.  The  case 
of  Dain  v.  Wycoff,  7  N.  Y.  191,  was  cited  on  the  part  of  the  defendant ; 
but  it  will  be  seen,  by  reference  to  the  opinion  delivered  in  that  case, 
that  it  was  decided  upon  the  very  distinction  which  has  been  laid  down 
in  the  adjudications  referred  to.  In  that  case  the  plaintiff's  daughter 
was  bound  out  to  service  to  another,  and  the  plaintiff  had  no  right  to 
her  services.  The  judgment  should  be  affirmed. 

All  the  judges,  except  RUGGLES,  who  did  not  hear  the  argument 
and.  took  no  part  in  the  decision,  concurred. 

Judgment  affirmed. 

(This  doctrine  of  "constructive  service,"  as  regards  minor  daughters,  is 
-generally  accepted  in  this  country.  Gray  v.  Durland,  51  N.  Y.  424 ;  Middle- 
ton  v.  Nichols,  62  N.  J.  Law,  636,  43  Atl.  575;  Kennedy  v.  Shea,  110  Mass.  147; 
Riddle  v.  McGinnis,  22  W.  Va.  253;  Lavery  v.  Crooke,  52  Wis.  612,  9  N.  W. 
599,  "8  Am.  Rep.  768.  But  the  case  of  Dean  v.  Peel  is  still  good  law  in  Eng- 
land. Hedges  v.  Tagg,  L.  R.  7  Ex.  283;  Whitbourne  v.  Williams  [1901]  2  K. 
B.  722.  As  regards  adult  daughters,  a  father  can  sue  if  the  daughter  resided 
in  his  family  and  performed  some  acts  of  service,  however  slight.  Beaudette 
v.  Gagne,  87  Me.  534,  33  Atl.  23;  Hudkins  v.  Haskins,  22  W.  Va.  645;  Gar- 
retson  v.  Becker,  52  111.  App.  255.) 


554  LAW  OF  TORTS. 


NEGLIGENCE. 


I.  NEGLIGENCE  GIVES  A  CAUSE  OF  ACTION  WHEN  IT 
VIOLATES  A  LEGAL  DUTY. 

(101  N.  T.  391,  4  N.  E.  752,  54  Am.  Rep.  718.) 

LARMORE  v.  CROWN  POINT  IRON  CO. 

(Court  of  Appeals  of  New  York.    February  9,  1886.) 

NEGLIGENCE— DANGEROUS  PBEMISES— DEFECTIVE  MACHINE. 

A  person  who  goes  upon  the  land  of  another  without  Invitation,  to  se- 
cure employment  from  the  owner  of  the  land,  is  not  entitled  to  indemnity 
from  such  owner  for  an  injury  happening  from  the  operation  of  a  de- 
fective machine  on  the  premises,  not  obviously  dangerous,  which  he  passes 
in  the  course  of  his  journey,  though  he  can  show  that  the  owner  might 
have  ascertained  the  defect  by  the  exercise  of  reasonable  care,  for  as  to 
such  person  there  is  no  violation  of  a  legal  duty. 

Appeal  from  Supreme  Court,  General  Term,  Third  Department. 

Action  by  Dennis  Larmore  against  the  Crown  Point  Iron  Company 
for  personal  injuries  caused  by  the  alleged  negligence  of  defendant. 
Verdict  and  judgment  for  plaintiff.  A  motion  for  a  new  trial  was  de- 
nied, and  defendant  appealed  to  the  general  term,  which  affirmed  the 
judgment,  and  defendant  again  appealed. 

ANDREWS,  J.  We  are  unable  to  perceive,  upon  the  evidence  in 
this  case,  that  any  duty  rested  on  the  defendant  to  keep  the  whimsey 
in  repair  for  the  protection  of  the  plaintiff.  The  defendant,  for  its 
own  purposes,  and  in  the  prosecution  of  its  business,  had  constructed 
a  machine  for  raising  ore  from  its  mines.  It  consisted  of  an  upright, 
or  mast,  in  which  a  lever  was  inserted  by  the  device  of  a  mortise  and 
tenon,  and,  as  an  additional  precaution  for  keeping  the  lever  in  place, 
an  iron  pin  was  driven  through  the  mast  and  tenon.  The  machine 
was  worked  by  attaching  horses  to  the  end  of  the  lever,  by  means 
whereof  a  bucket  filled  with  ore  was  raised  from  the  mine  to  the  sur- 
face of  the  ground,  and,  when  discharged,  the  bucket,  by  its  own 
weight,  descended,  turning  the  lever  with  some  rapidity  in  its  de- 
scent. The  lever,  on  the  occasion  in  question,  while  the  bucket  was 
descending,  was  thrown  out  of  the  socket  at  the  mast,  and,  flying 
around,  hit  and  broke  the  legs  of  the  plaintiff,  who  was  in  a  path  lead- 
ing to  one  of  the  pits  worked  by  the  defendant.  The  machine  had 
been  in  use  several  years  without  accident.  It  appeared,  on  examina- 
tion of  the  lever,  after  the  occurrence  in  question,  that  the  pin  which 
held  it  to  the  mast  had  broken  through  the  wood  of  the  tenon,  back  of 


NEGLIGENCE.  555 

the  point  where  the  pin  passed  through  it,  and  the  lever,  not  being 
firmly  held  to  its  place  by  the  other  arrangements,  came  out,  and 
caused  the  injury.  There  was  evidence  that  other  and  surer  precau- 
tions might  have  been,  and  in  other  mines  had  sometimes  been,  taken, 
to  secure  the  lever  to  the  mast,  than  those  adopted  by  the  defendant. 
But  the  judge  excluded  the  question  of  faulty  construction  from  the 
jury,  and  submitted  to  them,  as  the  sole  ground  of  negligence  to  be 
considered,  whether  the  defendant  had  omitted  to  make  proper  in- 
spection of  the  machine,  to  discover  defects  arising  after  its  original 
construction,  or  to  make  proper  repairs  to  render  it  safe. 

The  negligence  of  the  defendant,  if  any,  upon  the  case  as  presented, 
consisted  in  an  omission  to  take  affirmative  measures  to  ascertain 
and  remedy  defects  in  a  machine  originally  suitable,  developed  by 
use,  and  which  might  have  been  discovered  by  proper  inspection*  It 
may  be  assumed,  and  the  assumption  is  justified  by  decided  cases, 
that,  as  to  persons  standing  in  certain  relations  to  the  defendant,  a 
duty  rested  upon  the  company  to  exercise  reasonable  care  in  the 
maintenance  and  reparation  of  the  machine,  and  that  a  failure  to  per- 
form it  would  subject  the  defendant  to  liability  to  persons  occupying 
such  special  relations,  who  should  sustain  injury  from  the  omission. 
But  the  plaintiff  stood  in  no  such  relation  to  the  defendant  as  imposed 
upon  it  the  duty  to  keep  the  machine  in  repair.  He  was,  at  the  time 
of  the  accident,  in  every  legal  sense  a  stranger  to  the  defendant. 
He  had  before  that  been  employed  by  the  superintendent  of  the  com- 
pany to  work  by  the  day,  and  had  been  assigned  to  a  particular  serv- 
ice, which,  however,  he  had  abandoned  two  days  before  tHe  accident, 
and  on  the  day  of  the  accident  he  went  upon  the  defendant's  land  to 
seek  further  employment  at  a  pit,  to  which  the  path  used  by  the 
workmen  led,  on  which  he  was  standing  when  the  accident  happened. 
He  was  on  the  premises  at  most  by  the  mere  implied  sufferance  or 
license  of  the  defendant,  and  not  on  its  invitation,  express  or  implied ; 
nor  was  he  there,  in  any  proper  sense,  on  the  business  of  the  company. 
The  suggestion  made  to  him  by  the  foreman  at  pit  No.  5,  two  days 
before  the  accident,  on  the  occasion  of  his  refusing  to  work  at  that 
pit  any  longer,  on  account  of  the  supposed  danger,  that  he  could 
probably  "get  a  chance"  at  some  other  pit,  was  not  an  authority  or 
invitation  by  the  company  to  him  to  visit  the  other  pits  on  the  prem- 
ises. The  foreman  had  no  authority  to  give  the  plaintiff  permission 
to  go  elsewhere  upon  the  defendant's  lands,  and  the  suggestion  was 
obviously  a  mere  friendly  one,  made  by  the  foreman  in  the  interest 
of  the  plaintiff.  The  fact  that  the  plaintiff  had,  on  going  to  pit  No. 
10,  engaged  to  commence  work  there  on  the  following  Monday,  did 
not  change  his  relation  to  the  defendant,  or  make  him  other  than  a 
mere  licensee  on  the  premises.  He  went  there  on  his  own  business, 
and  in  returning  he  was  subserving  his  own  purposes  only. 


556  LAW  OF  TORTS. 

The  precise  question  is  whether  a  person  who  goes  upon  the  land 
of  another  without  invitation,  to  secure  employment  from  the  owner 
of  the  land,  is  entitled  to  indemnity  from  such  owner  for  an  injury 
happening  from  the  operation  of  a  defective  machine  on  the  premises, 
not  obviously  dangerous,  which  he  passes  in  the  course  of  his  journey, 
if  he  can  show  that  the  owner  might  have  ascertained  the  defect  by 
the  exercise  of  reasonable  care.  We  know  of  no  case  which  goes 
to  this  extent.  There  is  no  negligence,  in  a  legal  sense,  which  can 
give  a  right  of  action,  unless  there  is  a  violation  of  a  legal  duty  to 
exercise  care.  The  duty  may  exist  as  to  some  persons,  and  not  as 
to  others,  depending  upon  peculiar  relations  and  circumstances.  An 
employer  is  required  to  take  reasonable  precautions  and  to  exercise 
reasonable  care  in  providing  safe  machinery  and  appliances  for  the 
use  of  his  servant.  The  duty  arises  out  of  the  relation.  Fuller  v. 
Jewett,  80  N.  Y.  46,  36  Am.  Rep.  575.  The  owner  of  land,  in  general, 
may  use  it  as  he  pleases,  and  leave  it  in  such  condition  as  he  pleases ; 
but  he  cannot,  without  giving  any  warning,  place  thereon  spring- 
guns  or  dangerous  traps  which  may  subject  a  person  innocently  going 
on  the  premises,  though  without  actual  permission  or  license,  to  in- 
jury, without  liability.  The  value  of  human  life  forbids  measures  foi 
the  protection  of  the  possession  of  real  property  against  a  mere  in- 
truder, which  may  be  attended  by  such  ruinous  consequences.  The 
duty  in  this  case  grows  out  of  the  circumstances,  independently  ot 
any  question  of  license  to  enter  the  premises.  Bird  v.  Holbrook,  4 
Bing.  628.  So,  also,  where  the  owner  of  land,  in  the  prosecution  of 
his  own  purposes  or  business,  or  of  a  purpose  or  business  in  which 
there  is  a  common  interest,  invites  another,  either  expressly  or  im- 
pliedly,  to  come  upon  his  premises,  he  cannot  with  impunity  expose 
him  to  unreasonable  or  concealed  dangers ;  as,  for  example,  from 
an  open  trap  in  a  passage-way.  The  duty  in  this  case  is  founded  upon 
the  plainest  principles  of  justice.  Corby  v.  Hill,  4  C.  B.  (N.  S.)  556; 
Smith  v.  London,  etc.,  Docks  Co.,  L.  R.  3  C.  P.  326;  Holmes  v. 
Railway  Co.,  L.  R.  6  Exch.  123.  The  duty  of  keeping  premises  in  a 
safe  condition,  even  as  against  a  mere  licensee,  may  also  arise  where 
affirmative  negligence  in  the  management  of  the  property  or  business 
of  the  owner  would  be  likely  to  subject  persons  exercising  the  privi- 
lege theretofore  permitted  and  enjoyed,  to  great  danger.  The  case 
of  running  a  locomotive,  without  warning,  over  a  path  across  the 
railroad,  which  had  been  generally  used  by  the  public  without  ob- 
jection, furnishes  an  example.  Barry  v.  Railway  Co.,  92  N.  Y.  289,  44 
Am.  Rep.  377.  See,  also,  Beck  v.  Carter,  68  N.  Y.  283,  23  Am.  Rep. 

175- 

The  cases  referred  to  proceed  upon  definite  and  intelligible  grounds, 
the  justice  of  which  cannot  reasonably  be  controverted.  But  in  the 
case  before  us  there  were  no  circumstances  creating  a  duty  on  the 


NEGLIGENCE.  557 

part  of  the  defendant,  to  the  plaintiff,  to  keep  the  whimsey  in  repair, 
and  consequently  no  obligation  to  remunerate  the  latter  for  his  in- 
jury. The  machine  was  not  intrinsically  dangerous.  The  plaintiff 
was  a  mere  licensee.  The  negligence,  if  any,  was  passive,  and  not 
active, — of  omission,  and  not  of  commission.  Under  the  circum- 
stances, we  think  the  motion  for  nonsuit  should  have  been  granted. 
See  Severy  v.  Nickerson,  120  Mass.  306,  21  Am.  Rep.  514;  Hounsell 
v.  Smyth,  7  C.  B.  (N.  S.)  731. 

The  judgment  should  therefore  be  reversed,  and  a  new  trial  ordered. 

RAPALLO,  EARL,  and  FINCH,  JJ.,  concur.  DANFORTH, 
J.,  concurs  in  result.  RUGER,  C.  J.,  dissenting.  MILLER,  J.,  not 
voting. 

(Towards  an  invitee  reasonable  care  must  be  exercised  by  the  landowner  to 
have  the  premises  in  a  safe  condition.  Flynn  v.  Central  Val.  R.  Co.,  142  N. 
Y.  439,  37  N.  B.  514;  Phillips  v.  Library  Co.,  55  N.  J.  Law,  307,  27  Atl.  478 
[a  valuable  decision] ;  Sweeney  v.  Railroad  Co.,  10  Allen,  3G8,  87  Am.  Dec. 
644 ;  Davis  v.  Central  Cong.  Soc.,  129  Mass.  367,  37  Am.  Rep.  368 ;  Bennett  v. 
Railroad  Co.,  102  U.  S.  577,  26  L.  Ed.  235 ;  Tucker  v.  Draper,  62  Neb.  66,  86 
N.  W.  917,  54  L.  R.  A.  321 ;  Heaven  v.  Fender,  16  Q.  B.  D.  503 :  Indermaur  v. 
Dames,  L.  R.  1  C.  P.  274,  2  C.  P.  311.  But  this  duty  does  not  extend  to  the 
invitee  while  he  is  using  the  premises  for  a  purpose  beyond  the  limits  of  the 
invitation.  Ryerson  v.  Bathgate,  67  N.  J.  Law,  337,  51  Atl.  708,  57  L.  R.  A. 
307.  Towards  a  licensee,  on  the  other  hand,  the  only  duty  is  not  to  be  guilty 
of  active  negligence — to  refrain  from  acts  willfully  injurious.  The  licensee  is 
to  take  the  premises  as  he  finds  them.  Cusick  v.  Adams,  115  N.  Y.  59,  21  N. 
E.  673,  12  Am.  St.  Rep.  772;  Land  v.  Fitzgerald,  68  N.  J.  Law,  28,  52  Atl. 
229 ;  Taylor  v.  Haddonfield  &  C.  Turnpike  Co.,  65  N.  J.  Law,  102,  46  Atl.  707 ; 
Shea  v.  Gurney,  163  Mass.  184,  39  N.  E.  996,  47  Am.  St.  Rep.  446;  Hart  v, 
Cole,  156  Mass.  475,  31  N.  E.  644,  16  L.  R.  A.  557;  Muench  v.  Heinemann 
[Wis.]  96  N.  W.  800.  "Speaking  generally,  where  the  privilege  of  user  exists 
for  the  common  interest  or  mutual  advantage  of  both  parties,  it  will  be  held 
to  be  a  case  of  invitation ;  but  if  it  exists  for  the  mere  pleasure  and  benefit 
of  the  party  exercising  the  privilege,  it  will  be  held  a  case  of  license."  Pom- 
pouio  v.  New  York,  N.  H.  &  H.  R.  Co.,  66  Conn.  528,  537,  34  Atl.  491,  32  L.  R. 
A.  530,  50  Am.  St.  Rep.  124;  Furey  v.  New  York  Cent.  R.  Co.,  67  N.  J.  Law, 
270,  51  Atl.  505 ;  Sterger  v.  Van  Sicklen,  132  N.  Y.  499,  30  N.  E.  987,  16  L.  R. 
A.  640,  28  Am.  St.  Rep.  594. 

Even  towards  trespassers  there  is  a  duty  to  refrain  from  wanton  or  reck- 
less carelessness  endangering  their  lives  or  bodily  safety.  McGuiness  v.  But- 
ler, 159  Mass.  233,  236,  34  N.  E.  259,  38  Am.  St.  Rep.  412;  Rodgers  v.  Lees, 
140  Pa.  475,  21  Atl.  399,  12  L.  R.  A.  216,  23  Am.  St.  Rep.  250 ;  Ansteth  v.  "Buf- 
falo R.  Co.,  145  N.  Y.  210,  39  N.  E.  708,  45  Am.  St  Rep.  607.) 


558  LAW  OF   TORTS. 

(18  R.  I.  563,  29  Atl.  6,  27  L.  R.  A.  512,  49  Am.  St.  Rep.  790.) 

BEEHLER  v.  DANIELS,  CORNELL  &  CO.  et  al.  (in  part). 

(Supreme  Court  of  Rhode  Island.    May  1,  1894.) 

DANGEROUS  PREMISES— ELEVATOR  WELL — FIREMAN. 

In  the  absence  of  statute  requiring  guards  or  other  means  of  protection, 
or  of  invitation  upon  the  premises,  the  owner  is  not  liable  to  a  fireman, 
who  has  entered  in  the  course  of  his  duty  at  a  fire,  for  injuries  sustained 
In  falling  into  an  unguarded  elevator  well,  and  that,  too,  even  though  the 
merchandise  was  so  packed  as  to  conduct  one  to  the  unprotected  well. 
A  fireman  enters  as  a  licensee,  toward  whom  there  is  no  legal  duty,  by 
common  law,  to  exercise  reasonable  care  that  the  premises  shall  be  safe. 

Action  by  Henry  R.  Beehler  against  Daniels,  Cornell  &  Co.  for 
damages  for  personal  injuries.  Demurrer  to  declaration  sustained. 

STINESS,  J.  The  plaintiff  seeks  to  recover  for  injuries  caused  by 
falling  into  an  elevator  well  in  the  defendants'  building,  which  he  en- 
tered in  the  discharge  of  his  duty  as  a  member  of  the  fire  department 
of  the  city  of  Providence  in  answering  a  call  to  extinguish  a  fire. 
The  negligence  alleged  in  the  first  count  is  a  failure  to  guard  and  pro- 
tect the  well;  and,  in  the  second  count,  such  a  packing  of  mer- 
chandise as  to  guide  and  conduct  one  to  the  unguarded  and  unpro- 
tected well.  The  defendants  demur  to  the  declaration,  alleging  as 
grounds  of  demurrer  that  they  owed  no  duty  to  the  plaintiff ;  that  he 
entered  their  premises  in  the  discharge  of  a  public  duty,  and  assumed 
the  risks  of  his  employment;  that  he  was  in  the  premises  withouf 
invitation  from  them;  and  that  they  are  not  liable  for  consequences 
which  they  could  not  and  were  not  bound  to  foresee.  The  decisive 
question  thus  raised  is,  did  the  defendants,  under  the  circumstances, 
owe  to  the  plaintiff  a  duty,  for  failure  in  which  they  are  liable  to  him 
in  damages  ?  The  question  is  not  a  new  one,  and  we  think  it  is  safe 
to  say  that  it  has  never  been  answered  otherwise  than  in  favor  of 
the  defendants.  The  plaintiff  argues  that  it  was  his  duty  to  enter  the 
premises,  and,  consequently,  since  an  owner  may  reasonably  antici- 
pate the  liability  of  a  fire,  a  duty  arises  from  the  owner  to  the  fireman 
to  keep  his  ^premises  guarded  and  safe.  An  extension  of  this  argu- 
ment to  its  legitimate  result,  as  a  rule  of  law,  is  sufficiently  startling 
to  show  its  unsoundness.  The  liability  to  fire  is  common  to  all  build- 
ings and  at  all  times;  hence  every  owner  of  every  building  must  at 
all  times  keep  every  part  of  his  property  in  such  condition  that  a  fire- 
man, unacquainted  with  the  place,  and  groping  about  in  darkness  and 
smoke,  shall  come  upon  no  obstacle,  opening,  machine,  or  anything 
whatever  which  may  cause  him  injury.  This  argument  was  urged  in 
Woodruff  v.  Bowen,'  136  Ind.  431,  34  N.  E.  1113,  2.2.  L.  R.  A.  198,  but 
the  court  said :  "We  are  of  the  opinion  that  the  owner  of  a  building  in 


NEGLIGENCE.  559 

a  populous  city  does  not  owe  it  as  a  duty,  at  common  law,  independent 
of  any  statute  or  ordinance,  to  keep  such  building  safe  for  firemen  or 
other  officers  who  in  a  contingency  may  enter  the  same  under  a  license 
conferred  by  law."  Undoubtedly  the  plaintiff  in  this  case  had  the 
right  to  enter  the  defendants'  premises,  and  the  character  of  his  en- 
try was  that  of  a  licensee.  Cooley,  Torts,  313.  But  no  such  duty  as 
is  averred  in  this  declaration  is  due  from  an  owner  to  a  licensee. 
There  is  a  clear  distinction  between  a  license  and  an  invitation  to  en- 
ter premises,  and  an  equally  clear  distinction  as  to  the  duty  of  an 
owner  in  the  two  cases.  An  owner  owes  to  a  licensee  no  duty  as  to 
the  condition  of  premises,  unless  imposed  by  statute,  save  that  he 
should  not  knowingly  let  him  run  upon  a  hidden  peril,  or  willfully 
cause  him  harm;  while  to  one  invited  he  is  under  obligation  for 
reasonable  security  for  the  purposes  of  the  invitation.  The  plain- 
tiff's declaration  does  not  set  out  a  cause  of  action  upon  either  of 
these  grounds,  and  the  cases  cited  and  relied  on  by  him  fall  within 
the  two  classes  of  cases  described,  and  mark  the  line  of  duty  very 
clearly.  Parker  v.  Barnard,  135  Mass.  116,  46  Am.  Rep.  450,  was 
the  case  of  a  police  officer  who  had  entered  a  building,  the  doors  of 
which  were  found  open  in  the  night-time,  to  inspect  it,  according  to 
the  rules  of  the  police  department,  and  fell  down  an  unguarded  ele- 
vator well.  A  statute  required  such  wells  to  be  protected  by  railings 
and  trap  doors.  Judgment  having  been  given  for  the  defendant  at 
the  trial,  a  new  trial  was  ordered  up6n  the  ground  of  a  violation  of 
the  statute.  The  court  says :  "The  owner  or  occupant  of  land  or  a 
building  is  not  liable,  at  common  law,  for  obstructions,  pitfalls,  and 
other  dangers  there  existing,  as,  in  the  absence  of  any  inducement  or 
invitation  to  others  to  enter,  he  may  use  his  property  as  he  pleases. 
But  he  holds  his  property  subjecf  to  such  reasonable  control  and 
regulation  of  the  mode  of  keeping  and  use  as  the  legislature,  under 
the  police  power  vested  in  them  by  the  constitution  of  the  common- 
wealth, may  think  necessary  for  the  preventing  of  injuries  to  the 
rights  of  others  and  the  security  of  the  public  health  and  welfare." 
Then,  likening  the  plaintiff  to  a  fireman,  the  court  also  says :  "Even 
if  they  must  encounter  the  danger  arising  from  neglect  of  such  pre- 
cautions against  obstructions  and  pitfalls  as  those  invited  or  induced 
to  enter  have  a  right  to  expect,  they  may  demand,  as  against  the 
owners  or  occupants,  that  they  observe  the  statute  in  the  construction 
and  management  of  their  building."  In  Learoyd  v.  Godfrey,  138 
Mass.  315,  a  police  officer  fell  down  an  uncovered  well  in  or  near  a 
passageway  to  a  house  where  he  was  called  to  quell  a  disturbance 
of  the  peace.  A  verdict  for  the  plaintiff  was  sustained  upon  the  ground 
that  the  jury  must  have  found  that  the  officer  was  using  the  passage- 
way by  the  defendant's  invitation,  and  that  the  evidence  warranted 
the  finding.  Gordon  v.  Cummings,  152  Mass.  513,  25  N.  E.  978,  9 
L,.  R.  A.  640,  23  Am.  St.  Rep.  846,  was  the  case  of  a  letter  carrier 


500  LAW  OF  TORTS. 

who  fell  into  an  elevator  well  in  a  hallway  where  he  was  accustomed 
to  leave  letters  in  boxes  put  there  for  that  purpose.  The  court  held 
lhat  there  was  an  implied  invitation  to  the  carrier  to  enter  the  prem- 
ises. In  Engel  v.  Smith,  82  Mich,  i,  46  N.  W.  21,  21  Am.  St.  Rep. 
549,  the  plaintiff  fell  through  a  trap  door  left  open  in  a  building  where 
he  was  employed.  The  question  of  duty  is  not  discussed  in  the 
case,  but  simply  the  fact  of  negligence.  In  Bennett  v.  Railroad  Co., 
102  U.  S.  577,  26  L.  Ed.  235,  the  plaintiff,  a  passenger,  fell  through  a 
hatch  hole  in  the  depot  floor.  The  court  construed  the  declaration 
as  setting  out  facts  which  amounted  to  an  invitation  to  the  plaintiff 
to  pass  over  the  route  which  he  took  through  the  shed  depot  where 
the  hatch  hole  was.  In  the  present  case  the  plaintiff  sets  out  no  vio- 
lation of  a  statute,  or  facts  which  amounted  to  an  invitation,  and,  con- 
sequently, under  the  well-settled  rule  of  law,  the  defendants  were  un- 
der no  liability  to  him  for  the  condition  of  their  premises  or  the  pack- 
ing of  their  merchandise.  The  demurrer  to  the  declaration  must  there- 
fore be  sustained. 

(Similar  decisions  as  to  firemen  are  Hamilton  v.  Minneapolis  Co.,  78  Minn. 
3,  80  N.  W.  693,  79  Am.  St.  Rep.  350:  Gibson  v.  Leonard,  143  111.  182,  32  N. 
E.  182,  17  L.  R.  A.  588,  36  Am.  St  Rep.  376.) 


.  II.  LIABILITY  FOR  NEGLIGENCE  CONTRASTED  WITH 
ABSOLUTE  LIABILITY. 

(38  N.  J.  Law,  333,  20  Am.  Dec.  394.) 

MARSHALL   v.    WELWOOD   et   al. 
(Supreme  Court  of  New  Jersey.    June  Term,  1876.) 

NEGLIGENCE — EXPLOSION  OF  STEAM-BOILEB. 

An  owner  is  not  liable  for  injuries  caused  by  the  explosion  of  a  steam- 
boiler  used  by  him  on  his  premises,  without  proof  of  want  of  due  care 
and  skill  on  the  part  of  him  or  his  agent, 

Motion  for  new  trial. 

Action  by  Maurice  F.  Marshall  against  Joseph  Welwood  and  Mel- 
ville Garside  for  damages  to  plaintiff's  property  caused  by  the  ex- 
plosion of  a  steam-boiler  on  defendant  Welwood's  adjoining  prem- 
ises, which  boiler  Welwood  had  bought  from  defendant  Garside,  who 
was  experimenting  with  it  at  the  time  of  the  explosion.  The  ver- 
dict was  for  plaintiff  against  both  defendants.  Defendants  moved  for 
a  new  trial. 

Argued  before  BEASLEY,  C.  J.,  and  WOODHULL,  VAN 
SYCKEL,  and  SCUDDER,  JJ. 


NEGLIGENCE.  661 

BEASLEY,  C.  J.  The  judge  at  the  trial  of  this  cause  charged, 
among  other  matters,  that  as  the  evidence  incontestably  showed  that 
one  of  the  defendants,  Welwood,  was  the  owner  of  the  boiler  which 
caused  the  damage,  he  was  liable  in  the  action,  unless  it  appeared  that 
the  same  was  not  being  run  by  him,  or  his  agent,  at  the  time  of  the 
explosion.  The  proposition  propounded  was  that  a  person  is  re- 
sponsible for  the  immediate  consequences  of  the  bursting  of  a  steam- 
boiler,  in  use  by  him,  irrespective  of  any  question  as  to  negligence 
or  want  of  skill  on  his  part.  This  view  of  the  law  is  in  accordance 
with  the  principles  maintained,  with  great  learning  and  force  of  reas- 
oning, in  some  of  the  late  English  decisions.  In  this  class  the  lead- 
ing case  is  that  of  Fletcher  v.  Rylands,  L.  R.  I  Exch.  265,  which  was 
a  suit  on  account  of  damage  done  by  water  escaping  onto  the  prem- 
ises of  the  plaintiff  from  a  reservoir  which  the  defendant  had  con- 
structed, with  due  care  and  skill,  on  his  own  land.  The  judgment 
was  put  on  a  general  ground,  for  the  court  said:  "We  think  the 
true  rule  of  law  is  that  the  person  who,  for  his  own  purposes,  brings 
on  his  lands  and  collects  and  keeps  there  anything  likely  to  do  mis- 
chief if  it  escapes,  must  keep  it  in  at  his  peril,  and,  if  he  does  not  do 
so,  is  prima  facie  answerable  for  all  the  damage  which  is  the  natural 
consequence  of  its  escape."  This  result  was  deemed  just,  and  was 
sought  to  be  vindicated  on  the  theory  that  it  is  but  reasonable  that  a 
person  who  has  brought  something  on  his  own  property  which  was 
not  naturally  there,  harmless  to  others  so  long  as  it  is  confined  to  his 
own  property,  but  which  he  knows  to  be  mischievous  if  it  gets  on  his 
neighbor's,  should  be  obliged  to  make  good  the  damage  which  en- 
sues, if  he  does  not  succeed  in  confining  it  to  his  own  property.  This 
principle  would  evidently  apply  to  and  rule  the  present  case;  for 
water  is  no  more  likely  to  escape  from  a  reservoir  and  do  damage 
than  steam  is  from  a  boiler ;  and  therefore  if  he  who  collects  the  for- 
mer force  upon  his  property,  and  seeks,  with  care  and  skill,  to  keep  it 
there,  is  answerable  for  his  want  of  success,  so  is  he  who,  under 
similar  conditions,  endeavors  to  deal  with  the  latter.  There  is  noth- 
ing unlawful  in  introducing  water  into  a  properly  constructed  reservoir 
on  a  person's  own  land,  nor  in  raising  steam  in  a  boiler  of  proper 
quality.  Neither  act,  when  performed,  is  a  nuisance  per  se ;  and  the 
inquiry  consequently  is  whether,  in  the  doing  of  such  lawful  act,  the 
party  who  does  it  is  an  insurer  against  all  flaws  in  the  apparatus  em- 
ployed, no  matter  how  secret  or  unascertainable,  by  the  use  of  every 
reasonable  test,  such  flaws  may  be.  This  English  adjudication  takes 
the  affirmative  side  of  the  question,  conceding,  however,  that  the  sub- 
ject is  not  controlled  by  any  express  decision,  and  that  it  is  to  be 
investigated  with  reference  to  the  general  grounds  of  jurisprudence. 

I  have  said  the  doctrine  involved  has  been  learnedly  treated,  and 
the  decision  is  of  great  weight,  and  yet  its  reasoning  has  failed  to 
CHASE  (2o  ED.) — 36 


562  LAW  OF  TORTS. 

convince  me  of  the  correctness  of  the  result  to  which  it  leads,  and  such 
result  is  clearly  opposed  to  the  course  which  judicial  opinion  has 
taken  in  this  country.  The  fallacy  in  the  process  of  argument  by 
which  judgment  is  reached  in  this  case  of  Fletcher  v.  Rylands  ap- 
pears to  me  to  consist  in  this :  that  the  rule  mainly  applicable  to  a 
class  of  cases  which  I  think  should  be  regarded  as,  in  a  great  degree, 
exceptional,  is  amplified  and  extended  into  a  general,  if  not  universal, 
principle.  The  principal  instance  upon  which  reliance  is  placed  is 
the  well-known  obligation  of  the  owner  of  cattle  to  prevent  them 
from  escaping  from  his  land  and  doing  mischief.  The  law  as  to  this 
point  is  perfectly  settled,  and  has  been  settled  from  the  earliest  times, 
and  is  to  the  effect  that  the  owner  must  take  charge  of  his  cattle  at 
his  peril,  and,  if  they  evade  his  custody,  he  is,  in  some  measure,  re- 
sponsible for  the  consequences.  This  is  the  doctrine  of  the  Year 
Books,  but  I  do  not  find  that  it  is  grounded  in  any  theoretical  prin- 
ciple, making  a  man  answerable  for  his  acts  or  omissions,  without  re- 
gard to  his  culpability.  That  in  this  particular  case  of  escaping  cat- 
tle so  stringent  an  obligation  upon  the  owner  should  grow  up,  was 
not  unnatural.  That  the  beasts  of  the  land-owner  should  be  suc- 
cessfully restrained  was  a  condition  of  considerable  importance  to 
the  unmolested  enjoyment  of  property,  and  the  right  to  plead  that 
the  escape  had  occurred  by  inevitable  accident  would  have  seriously 
impaired,  if  it  did  not  entirely  frustrate,  the  process  of  distress  dam- 
age-feasant.  Custom  has  had  much  to  do  in  giving  shape  to  the  law, 
and  what  is  highly  convenient  readily  runs  into  usage,  and  is  ac- 
cepted as  a  rule.  It  would  but  rarely  occur  that  cattle  would  escape 
from  a  vigilant  owner,  and  in  this  instance  such  rare  exceptions  seem 
to  have  passed  unnoticed,  for  there  appears  to  be  no  example  of  the 
point  having  been  presented  for  judicial  consideration ;  for  the  con- 
clusion of  the  liability  of  the  unnegligent  owner  rests  in  dicta,  and  not 
in  express  decision.  But,  waiving  this,  there  is  a  consideration  which 
seems  to  me  to  show  that  this  obligation,  which  is  put  upon  the  own- 
er of  errant  cattle,  should  not  be  taken  to  be  a  principle  applicable,  in 
a  general  way,  to  the  use  or  ownership  of  property,  which  is  this : 
that  the  owner  of  such  cattle  is,  after  all,  liable  only  sub  modo  for  the 
injury  done  by  them ;  that  is,  he  is  responsible,  with  regard  to  tame 
beasts  who  have  no  exceptionally  vicious  disposition  so  far  as  is 
known,  for  the  grass  they  eat,  and  such  like  injuries,  but  not  for  the 
hurt  they  may  inflict  on  the  person  of  others, — a  restriction  on  lia- 
bility which  is  hardly  consistent  with  the  notion  that  this  class  of  cases 
proceeds  from  a  principle  so  wide  as  to  embrace  all  persons  whose 
lawful  acts  produce,  without  fault  in  them,  and  in  an  indirect  manner, 
ill  results  which  disastrously  affect  innocent  persons.  If  the  principle 
ruling  these  cases  was  so  broad  as  this,  conformity  to  it  would  re- 
quire that  the  person,  being  the  cause  of  the  mischief,  should  stand  as 
an  indemnifier  against  the  whole  of  the  damage.  It  appears  to  me, 


NEGLIGENCE.  563 

therefore,  that  this  rule,  which  applies  to  damage  done  by  straying 
cattle,  was  carried  beyond  its  true  bounds,  when  it  was  appealed  to  as 
proof  that  a  person  in  law  is  answerable  for  the  natural  consequences 
of  his  acts,  such  acts  being  lawful  in  themselves,  and  having  been  done 
with  proper  care  and  skill. 

The  only  other  cases  which  were  referred  to  in  support  of  the 
judgment  under  consideration  were  those  of  a  man  who  was  sued  for 
not  keeping  the  wall  of  his  privy  repaired,  to  the  detriment  of  his 
neighbor,  being  the  case  of  Tenant  v.  Golding,  I  Salk.  21 ;  and  sev- 
eral actions  which  it  is  said  had  been  brought  against  the  owners  of 
some  alkali  works  for  damages  alleged  to  have  been  caused  by  the 
chlorine  fumes  escaping  from  their  works,  which  works  the  case 
showed  had  been  erected  upon  the  best  scientific  principles.  But 
I  am  compelled  to  think  that  these  cases  are  but  a  slender  basis  for 
the  large  structure  put  upon  it.  The  case  of  Tenant  v.  Golding  pre- 
sented merely  the  question  whether  a  land-owner  is  bound  in  favor  of 
his  neighbor  to  keep  the  wall  of  his  privy  in  repair,  and  the  court  held 
that  he  was,  and  that  he  was  responsible  if,  for  want  of  such  repara- 
tion, the  filth  escaped  on  the  adjoining  land.  No  question  was  moot- 
ed as  to  his  liability  in  case  the  privy  had  been  constructed  with  care 
and  skill,  with  a  view  to  prevent  the  escape  of  its  contents,  and  had 
been  kept  in  a  state  of  repair.  Not  to  repair  a  receptacle  ot  this 
kind  was,  in  itself,  a  prima  facie  case  of  negligence,  and  it  seems  to 
me  that  all  the  court  decided  was  to  hold  so.  But  this  consideration 
is  also  to  be  noticed,  both  with  respect  to  this  last  case,  and  that  of 
the  injurious  fumes  from  the  alkali  works,  that  in  truth  they  stand 
somewhat  by  themselves,  and  having  this  peculiarity :  that  the  things 
in  their  nature  partake  largely  of  the  character  of  nuisances.  Take 
the  alkali  works  as  an  example.  Placed  in  a  town,  under  ordinary 
circumstances,  they  would  be  a  nuisance.  When  the  attempt  is  made 
by  scientific  methods  to  prevent  the  escape  of  the  fumes,  it  is  an  at- 
tempt to  legalize  that  which  is  illegal,  and  the  consequence  is,  it 
may  well  be  held  that,  failing  in  the  attempt,  the  nuisance  remains. 
I  cannot  agree  that  from  these  indications  the  broad  doctrine  is 
to  be  drawn  that  a  man  in  law  is  an  insurer  that  the  acts  which  he 
does,  such  acts  being  lawful  and  done  with  care,  shall  not  injuriously 
affect  others.  The  decisions  cited  are  not  so  much  examples  of  legal 
maxims  as  of  exceptions  to  such  maxims ;  for  they  stand  opposed  and 
in  contrast  to  principles  which  it  seems  to  me  must  be  considered 
much  more  general  in  their  operation  and  elementary  in  their  nature. 
The  common  rule,  quite  institutional  in  its  character,  is  that,  in  or- 
der to  sustain  an  action  for  a  tort,  the  damage  complained  of  must 
come  from  a  wrongful  act.  Mr.  Addison,  h\  his  work  on  Torts,  (vol- 
ume i,  p.  3,)  very  correctly  states  this  rule.  He  says:  "A  man  may, 
however,  sustain  grievous  damage  at  the  hands  of  another,  and  yet, 
if  it  be  the  result  of  inevitable  accident,  or  a  lawful  act,  done  in  a 


564  LAW  OF  TORTS. 

lawful  manner,  without  any  carelessness  or  negligence,  there  is  no 
legal  injury,  and  no  tort  giving  rise  to  an  action  for  damages." 
Among  other  examples,  he  refers  to  an  act  of  force,  done  in  neces- 
sary self-defense,  causing  injury  to  an  innocent  by-stander,  which 
he  characterizes  as  damnum  sine  injuria,  "for  no  man  does  wrong  or 
contracts  guilt  in  defending  himself  against  an  aggressor."  Other 
instances  of  a  like  kind  are  noted,  such  as  the  lawful  obstruction  of 
the  view  from  the  windows  of  dwelling-houses;  or  the  turning  aside, 
to  the  detriment  of  another,  the  current  of  the  sea  or  river,  by  means 
of  walls  or  dykes.  Many  illustrations  of  the  same  bearing  are  to  be 
found  scattered  through  the  books  of  reports.  Thus  Dyer,  2$b,  says 
"that,  if  a  man  have  a  dog  which  has  killed  sheep,  the  master  of  the 
dog  being  ignorant  of  such  quality  and  property  of  the  dog,  the  mas- 
ter shall  not  be  punished  for  that  killing."  This  case  belongs  to  a 
numerous,  well-known  class,  where  animals  which  are  usually  harm- 
less do  damage;  the  decisions  being  that,  under  such  conditions,  the 
owners  of  the  animals  are  not  responsible.  Akin  to  these  in  prin- 
ciple are  cases  of  injury  done  to  innocent  persons  by  horses,  in  the 
charge  of  their  owners,  becoming  ungovernable  by  reason  of  unex- 
pected causes;  or  where  a  person  in  a  dock  was  struck  by  the  falling 
of  a  bale  of  cotton  which  the  defendant's  servants  were  lowering, 
(Scott  v.  Dock  Co.,  3  Hurl.  &  C.  596;)  or  in  cases  of  collision,  either 
on  land  or  sea,  (Hammack  v.  White,  n  C.  B.,  N.  S.  588.) 

It  is  true  that  these  cases  of  injury  done  to  personal  property,  or 
to  persons,  are,  in  the  case  of  Fletcher  v.  Rylands,  sought  to  be  dis- 
tinguished from  other  damages,  on  the  ground  that  they  are  done  in 
the  course  of  traffic  on  the  highways,  whether  by  land  or  sea,  which 
cannot  be  conducted  without  exposing  those  whose  persons  or  prop- 
erty are  near  it  to  some  inevitable  risk.  But  this  explanation  is  not 
sufficiently  comprehensive;  for  if  a  frightened  horse  should,  in  his 
night,  break  into  an  inclosure,  no  matter  how  far  removed  from  the 
highway,  the  owner  would  not  be  answerable  for  the  damage  done. 
Xor  is  the  reason  upon  which  it  rests  satisfactory ;  for,  if  traffic  can- 
not be  carried  on  without  some  risk,  why  can  it  not  be  said,  with  the 
same  truth,  that  the  other  affairs  of  life,  though  they  be  transacted 
away  from  the  highways,  cannot  be  carried  on  without  some  risk ; 
and  if  such  risk  is,  in  the  one  case,  to  be  borne  by  innocent  persons, 
why  not  in  the  other?  Business  done  upon  private  property  may  be 
a  part  of  traffic  as  well  as  that  done  by  means  of  the  highway,  and 
no  reason  is  perceived  why  the  same  favor  is  not  to  be  extended  to  it 
in  both  situations.  But,  besides  this,  the  reason  thus  assigned  for 
the  immunity  of  him  who  is  the  unwilling  producer  of  the  damage  has 
not  been  the  ground  on  which  the  decisions  illustrative  of  the  rule 
have  been  put;  the  ground  has  been  that  the  person  sought  to  be 
charged  had  not  done  any  unlawful  act.  Everywhere,  in  all  branches 
of  the  law,  the  general  principle  that  blame  must  be  imputable  as  a 


NEGLIGENCE.  565 

ground  of  responsibility  for  damage  proceeding  from  a  lawful  act  is 
apparent.  A  passenger  is  injured  by  the  breaking  of  an  axle  of  a 
public  conveyance;  the  carrier  is  not  liable,  unless  negligence  can 
be  shown.  A  man's  guest  is  hurt  by  the  falling  of  a  chandelier;  a 
suit  will  not  lie  against  the  host,  without  proof  that  he  knew,  or  ought 
to  have  known,  of  the  existence  of  the  danger.  If  the  steam-engine 
which  did  the  mischief  in  the  present  case  had  been  in  use  in  driving 
a  train  of  cars  on  a  railroad,  and  had,  in  that  situation,  exploded,  and 
had  inflicted  injuries  on  travelers  or  by-standers,  it  could  not  have 
been  pretended  that  such  damage  was  actionable,  in  the  absence  of  the 
element  of  negligence  or  unskillfulness.  By  changing  the  place  of  the 
accident  to  private  property,  I  cannot  agree  that  a  different  rule  ob- 
tains. 

It  seems  to  me,  therefore,  than  in  this  case  it  was  necessary  to  sub- 
mit the  matter,  as  a  question  of  fact  for  the  jury,  whether  the  occur- 
rence doing  the  damage  complained  of  was  the  product  of  pure  acci- 
dent, or  the  result  of  want  of  care  or  skill  on  the  part  of  the  defend- 
ant or  his  agents.  This  view  of  the  subject  is  taken  in  the  American 
decisions.  A  case  in  all  respects  in  point  is  that  of  Losee  v.  Bu- 
chanan, 51  N.  Y.  476,  10  Am.  Rep.  623.  The  facts  were  essentially  the 
same  with  those  of  the  principal  case.  It  was  an  action  growing  out 
of  the  explosion  of  a  steam-boiler  upon  private  property,  and  the  rul- 
ing was  that  such  action  could  not  be  sustained  without  proof  of 
fault  or  negligence.  In  that  report  the  line  of  cases  is  so  fully  set 
out  that  it  is  unnecessary  here  to  repeat  them. 

The  rule  should  be  made  absolute. 

(The  case  of  Fletcher  v.  Rylands,  L.  R.  1  Exch.  265,  was  afterwards  affirmed 
In  the  House  of  Lords.  Rylands  v.  Fletcher,  L.  R.  3  H.  L.  330.  In  Losee  v. 
Buchanan,  51  N.  Y.  476,  486,  10  Am.  Rep.  623,  it  is  said  that  "the  law,  as  laid 
down  in  these  cases,  is  in  direct  conflict  with  the  law  as  settled  in  this 
country.  Here,  if  one  builds  a  dam  upon  his  own  premises  and  thus  holds 
back  and  accumulates  the  water  for  his  benefit,  or  if  he  brings  water  upon 
his  premises  into  a  reservoir,  in  case  the  dam  or  the  banks  of  the  reservoir 
give  way  and  the  lands  of  the  neighbor  are  thus  flooded,  he  is  not  liable  for 
the  damage  without  proof  of  some  fault  or  negligence  on  his  part."  Many 
cases  are  cited  in  support  of  this  statement.  See  also  Brown  v.  Collins,  53 
N.  H.  442,  16  Am.  Rep.  372,  discussing  this  subject.  In  Massachusetts  and 
Minnesota,  however,  the  doctrine  of  Rylands  v.  Fletcher  has  been  approved. 
Gorham  v.  Gross,  125  Mass.  232,  28  Am.  Rep.  234;  Cahill  v.  Eastman,  18 
Minn.  324  (Gil.  292),  10  Am.  Rep.  184.  But  recent  cases  in  these  states  limit 
these  earlier  decisions  somewhat.  Ainsworth  v.  Lakin,  180  Mass.  397,  62 
N.  E.  746,  57  L.  R.  A.  132,  91  Am.  St.  Rep.  314 ;  Berger  v.  Minneapolis  Gas- 
light Co.,  60  Minn.  296,  62  N.  W.  336.) 


566  LAW  OF  TORTS. 

III.  CONTRIBUTORY  NEGLIGENCE. 
1.  General  principle. 

(95  U.  S.  439,  24  L.  Ed.  50C.) 

BALTIMORE  &  P.  R.  CO.  v.  JONES. 

(Supreme  Court  of  United  States.     October  Term,   1877.) 

1.  CONTRIBUTORY  NEGLIGENCE— DEFEATING  A  RECOVERY. 

Where  a  person's  own  negligence  or  want  of  ordinary  care  and  caution 
so  far  contributes  to  an  injury  to  himself  that  but  for  such  negligence  or 
want  of  ordinary  care  and  caution  on  his  owu  part  the  injury  would  not 
have  happened,  he  cannot  recover  therefor. 

2.  SAME— MASTER  AND  SERVANT. 

Railroad  workmen  were  accustomed  to  ride  to  and  from  their  work 
on  the  pilot  and  tender  of  the  engine  of  the  work-train,  though  they  had 
been  informed  that  it  was  dangerous,  and  a  box-car  had  been  provided 
for  them.  In  a  collision  between  such  work-train  and  cars  standing  on 
the  track,  plaintiff,  riding  on  the  pilot,  was  injured,  while  the  workmen 
in  the  box-car  were  not  injured.  Held,  that  plaintiff  was  guilty  of  con- 
tributory negligence,  which  would  defeat  a  recovery  for  his  injuries  in  an 
action  against  the  railroad  company,  and  that  it  was  no  excuse  that  he 
was  told  by  the  engineer,  when  the  train  was  starting,  to  "hurry  up." 

Error  to  the  Supreme  Court  of  the  District  of  Columbia. 

Action  by  William  H.  Jones  against  the  Baltimore  &  Potomac 
Railroad  Company  to  recover  for  personal  injuries  caused  by  the  al- 
leged negligence  of  defendant.  Verdict  and  judgment  were  for  plain- 
tiff. Defendant  sued  out  a  writ  of  error. 

SWAYNE,  J.  The  defendant  in  error  was  the  plaintiff  in  the 
court  below.  Upon  the  trial  there  he  gave  evidence  to  the  following 
•effect:  For  several  months  prior  to  the  I2th  of  November,  1872, 
lie  was  in  the  service  of  the  company  as  a  day  laborer.  He  was  one 
of  a  party  of  men  employed  in  constructing  and  keeping  in  repair 
the  road-way  of  the  defendant.  It  was  usual  for  the  defendant  to 
convey  them  to  and  from  their  place  of  work.  Sometimes  a  car 
was  used  for  this  purpose ;  at  others,  only  a  locomotive  and  tender 
were  provided.  It  was  common,  whether  a  car  was  provided  or  not, 
for  some  of  the  men  to  ride  on  the  pilot  or  bumper  in  front  of  the 
locomotive.  This  was  done  with  the  approval  of  Van  Ness,  who  was 
in  charge  of  the  laborers  when  at  work,  and  the  conductor  of  the 
train  which  carried  them  both  ways.  The  plaintiff  had  no  connec- 
tion with  the  train.  On  the  I2th  of  November,  before  mentioned, 
the  party  of  laborers,  including  the  plaintiff,  under  the  direction  of 
Van  Ness,  were  employed  on  the  west  side  of  the  eastern  branch  of 
the  Potomac,  near  where  the  defendant's  road  crosses  that  stream, 
in  filling  flat-cars  with  dirt,  and  unloading  them  at  an  adjacent  point. 


NEGLIGENCE.  5<57 

The  train  that  evening  consisted  of  a  locomotive,  tender,  and  box- 
car. When  the  party  was  about  to  leave  on  their  return  that  even- 
ing, the  plaintiff  was  told  by  Van  Ness  to  jump  on  anywhere;  that 
they  were  behind  time,  and  must  hurry.  The  plaintiff  was  riding  on 
the  pilot  of  the  locomotive,  and  while  there  the  train  ran  into  certain 
cars  belonging  to  the  defendant,  and  loaded  with  ties.  These  cars 
had  become  detached  from  another  train  of  cars,  and  were  stand- 
ing on  the  track  in  the  Virginia-Avenue  tunnel.  The  accident  was 
the  result  of  negligence  on  the  part  of  the  defendant.  Thereby  one 
of  the  plaintiff's  legs  was  severed  from  his  body,  and  the  other  one 
severely  injured.  Nobody  else  was  hurt,  except  two  other  persons, 
one  riding  on  the  pilot  with  the  plaintiff,  and  the  other  one  on  the 
cars  standing  in  the  tunnel. 

The  defendant  then  gave  evidence  tending  to  prove  as  follows : 
About  six  weeks  or  two  months  before  the  accident  a  box-car  had 
been  assigned  to  the  construction  train  with  which  the  plaintiff  was 
employed.  The  car  was  used  thereafter  every  day.  About  the  time 
it  was  first  used,  and  on  several  occasions  before  the  accident,  Van 
Ness  notified  the  laborers  that  they  must  ride  in  the  car,  and  not  on 
the  engine ;  and  the  plaintiff  in  particular,  on  several  occasions  not 
long  before  the  disaster,  was  forbidden  to  ride  on  the  pilot,  both  by 
Van  Ness  and  the  engineer  in  charge  of  the  locomotive.  The  plain- 
tiff was  on  the  pilot  at  the  time  of  the  accident,  without  the  knowl- 
edge of  any  agent  of  the  defendant.  There  was  plenty  of  room  for 
the  plaintiff  in  the  box-car,  which  was  open.  If  he  had  been  anywhere 
but  on  the  pilot,  he  would  not  have  been  injured.  "The  collision  was 
not  brought  about  by  any  negligence  of  the  defendant's  agents,  but 
was  unavoidable.  The  defendant's  agents  in  charge  of  the  two  trains, 
and  the  watchman  in  the  tunnel  were  competent  men. 

The  plaintiff,  in  rebuttal,  gave  evidence  tending  to  show  that  some- 
times the  box-car  was  locked  when  there  was  no  other  car  attached 
to  the  train,  and  that  the  men  were  allowed  by  the  conductor  and 
engineer  to  ride  on  the  engine,  and  that  on  the  evening  of  the  acci- 
dent the  engineer  in  charge  of  the  locomotive  knew  that  the  plaintiff 
was  on  the  pilot. 

The  evidence  being  closed,  the  defendant's  counsel  asked  the  court  to 
instruct  the  jury  as  follows :  "If  the  jury  find  from  the  evidence  that 
the  plaintiff  knew  the  box-car  was  the  proper  place  for  him,  and  if 
he  knew  his  position  on  the  pilot  of  the  engine  was  a  dangerous  one, 
then  they  will  render  a  verdict  for  the  defendant,  whether  they  find  that 
its  agents  allowed  the  plaintiff  to  ride  on  the  pilot  or  not."  This 
instruction  was  refused,  and  the  defendant's  counsel  excepted. 

Three  questions  arise  upon  the  record :  (i)  The  exception  touch- 
ing the  admission  of  evidence.  (2)  As  to  the  application  of  the  rule 
relative  to  injuries  received  by  one  servant  by  reason  of  the  negligence 


5G8  LAW  OF  TORTS. 

of  another  servant,  both  being  at  the  time  engaged  in  the  same  service 
of  a  common  superior.  (3)  As  to  contributory  negligence  on  the 
part  of  the  plaintiff. 

We  pass  by  the  first  two  without  remark.  We  have  not  found  it 
necessary  to  consider  them.  In  our  view,  the  point  presented  by  the 
third  is  sufficient  to  dispose  of  the  case.  Negligence  is  the  failure  to 
do  what  a  reasonable  and  prudent  person  would  ordinarily  have  done 
under  the  circumstances  of  the  situation,  or  doing  what  such  a  person, 
under  the  existing  circumstances,  would  not  have  done.  The  essence 
of  the  fault  may  lie  in  omission  or  commission.  The  duty  is  dictated 
and  measured  by  the  exigencies  of  the  occasion.  See  Whart.  Neg. 
§  i,  and  notes.  One  who  by  his  negligence  has  brought  an  injury  up- 
on himself  cannot  recover  damages  for  it.  Such  is  the  rule  of  the  civil 
and  of  the  common  law.  A  plaintiff  in  such  cases  is  entitled  to  no  re- 
lief. But  where  the  defendant  has  been  guilty  of  negligence  also, 
in  the  same  connection,  the  result  depends  upon  the  facts.  The  ques- 
tion in  such  cases  is  (i)  whether  the  damage  was  occasioned  entirely 
by  the  negligence  or  improper  conduct  of  the  defendant;  or  (2) 
whether  the  plaintiff  himself  so  far  contributed  to  the  misfortune  by 
his  own  negligence,  or  want  of  ordinary  care  and  caution,  that  but  for 
such  negligence  or  want  of  care  and  caution  on  his  part  the  misfortune 
would  not  have  happened.  In  the  former  case,  the  plaintiff  is  enti- 
tled to  recover ;  in  the  latter,  he  is  not.  Tuff  v.  Warman,  5  C.  B.  (N. 
S.)  573 ;  Butterfield  v.  Forrester,  11  East,  60 ;  Bridge  v.  Railroad  Co., 
3  Mees.  &  W.  244;  Davies  v.  Mann,  10  Mees.  &  W.  546;  Clayards 
v.  Dethick,  12  Q.  B.  439;  Van  Lien  v.  Manufacturing  Co.,  14  Abb. 
Prac.  (N.  S.)  74;  Ince  v.  Ferry  Co.,  106  Mass.  149. 

It  remains  to  apply  these  tests  to  the  case  before  us.  The  facts 
with  respect  to  the  cars  left  in  the  tunnel  are  not  fully  disclosed  in 
the  record.  It  is  not  shown  when  they  were  left  there,  how  long  they 
had  been  there,  when  it  was  intended  to  remove  them,  nor  why  they 
had  not  been  removed  before.  It  does  appear  that  there  was  a  watch- 
man at  the  tunnel,  and  that  he  and  the  conductor  of  the  train  from 
which  they  were  left,  and  the  conductor  of  the  train  which  carried 
the  plaintiff,  were  all  well  selected,  and  competent  for  their  places. 
For  the  purposes  of  this  case,  we  assume  that  the  defendant  was 
guilty  of  negligence.  The  plaintiff  had  been  warned  against  riding 
on  the  pilot,  and  forbidden  to  do  so.  It  was  next  to  the  cow-catcher, 
and  obviously  a  place  of  peril,  especially  in  case  of  collision.  There 
was  room  for  him  in  the  box-car.  He  should  have  taken  his  place 
there.  He  could  have  gone  into  the  box-car  in  as  little,  if  not  less, 
time  than  it  took  to  climb  to  the  pilot.  The  knowledge,  assent,  or 
direction  of  the  company's  agents  as  to  what  he  did  is  immaterial. 
If  told  to  get  on  anywhere,  that  the  train  was  late,  and  that  he  must 
hurry,  this  was  no  justification  for  taking  such  a  risk.  As  well  might 


NEGLIGENCE.  669 

he  have  obeyed  a  suggestion  to  ride  on  the  cow-catcher,  or  put  him- 
self on  the  track  before  the  advancing  wheels  of  the  locomotive. 
The  company,  though  bound  to  a  high  degree  of  care,  did  not  insure 
his  safety.  He  was  not  an  infant  nor  non  compos.  The  liability 
of  the  company  was  conditioned  upon  the  exercise  of  reasonable  and 
proper  care  and  caution  on  his  part.  Without  the  latter,  the  former 
could  not  arise.  He  and  another  who  rode  beside  him  were  the  only 
persons  hurt  upon  the  train.  Alt  those  in  the  box-car,  where  he 
should  have  been,  were  uninjured.  He  would  have  escaped  also,  if 
he  had  been  there.  His  injury  was  due  to  his  own  recklessness  and 
folly.  He  was  himself  the  author  of  his  misfortune.  This  is  shown 
with  as  near  an  approach  to  a  demonstration  as  anything  short  of 
mathematics  will  permit.  The  case  is  thus  clearly  brought  within 
the  second  of  the  predicates  of  mutual  negligence  we  have  laid  down. 
Hickey  v.  Railroad  Co.,  14  Allen,  429;  Todd  v.  Railroad  Co.,  3  Allen, 
18,  80  Am.  Dec.  49;  Id.,  7  Allen.  207,  83  Am.  Dec.  679;  Gavett  v. 
Railroad  Co.,  16  Gray,  501,  77  Am.  Dec.  422 ;  Lucas  v.  Railroad  Co., 
6  Gray,  64,  66  Am.  Dec.  406 ;  Ward  v.  Railroad  Co.,  1 1  Abb.  Prac.  (N. 
S.)  411;  Railroad  Co.  v.  Yanvood,  15  111.  468;  Doggett  v.  Railroad 
Co.,  34  Iowa,  284.  The  plaintiff  was  not  entitled  to  recover.  It  fol- 
lows that  the  court  erred  in  refusing  the  instruction  asked  upon  thii. 
subject.  If  the  company  had  prayed  the  court  to  direct  the  jury  to  re- 
turn a  verdict  for  the  defendant,  it  would  have  been  the  duty  of  the 
court  to  give  such  direction,  and  error  to  refuse.  Gavett  v.  Railroad 
Co.,  supra;  Merchants'  Bank  v.  State  Bank,  10  Wall.  604,  19  L.  Ed. 
1008 ;  Pleasants  v.  Fant,  22  Wall.  121,  22  L.  Ed.  780. 

Judgment  reversed,  and  the  cause  remanded,  with  directions  to 
issue  a  venire  de  novo,  and  to  proceed  in  conformity  with  this  opin- 
ion. 

(See  also  Wilds  v.  Railroad  Co.,  24  N.  Y.  430;  Rowen  v.  Railroad  Co.,  &s) 
Conn.  364,  21  Atl.  1073;  Lehigh  Val.  R.  Co.  v.  Greiner,  113  Pa.  600,  6  Atl. 
246;  Murphy  v.  Deane,  101  Mass.  455,  3  Am.  Rep.  390;  Central  R.  Co.  v. 
Moore,  24  N.  J.  Law,  824 ;  Monongahela  City  v.  Fischer,  111  Pa.  9,  2  Atl.  87, 
56  Am.  Rep.  241 ;  Lent  v.  Railroad  Co.,  120  N.  Y.  467,  24  N.  E.  653.  The  neg- 
ligence of  the  plaintiff,  if  it  be  a  proximate  contributing  cause  of  the  injury, 
debars  recovery,  even  if  the  defendant's  negligence  were  greater  than  his 
own.  Ward  v.  Maine  Cent.  R.  Co.,  96  Me.  136,  51  Atl.  947 ;  Bolin  v.  Chicago, 
St.  P.,  M.  &  O.  R.  Co.,  108  Wis.  333,  84  N.  W.  446,  81  Am.  St.  Rep.  911 ;  Rich- 
mond Traction  Co  v.  Martin's  Adm'x  [Va.]  45  S.  E.  886.  The  doctrine  of  "com- 
parative negligence,"  which  for  many  years  prevailed  in  Illinois,  whereby,  if 
the  plaintiff's  negligence  were  slight  and  that  of  the  defendant  gross,  the 
plaintiff  inigbt  recover,  has  been  recently  discarded  in  that  state.  Lanark  v. 
Dougherty,  153  111.  163,  38  N.  E.  892.) 


570  LAW  OF  TORTS. 


2.  Negligence  of  plaintiff  remote. 

(10  Mees.  &  W.  545.) 

DAVIES    V.    MANN. 

(Court  of  Exchequer.     November  4,  1842.) 

1.  NEGLIGENCE— REMOTE  AND  PROXIMATE  CAUSE  OF  INJURY. 

In  an  action  for  injuries  alleged  to  have  been  caused  by  defendant's 
negligence,  the  negligence  of  plaintiff  which  will  preclude  his  recovery 
must  be  such  as  that  he  could,  by  ordinary  care,  have  avoided  the  conse- 
quence of  defendant's  negligence. 

2.  SAME. 

Plaintiff  fettered  the  forefeet  of  his  ass,  and  turned  it  into  the  highway 
to  graze,  and  defendant's  servant,  negligently  driving  along  the  highway, 
ran  over  it.  Held,  that  the  court  properly  charged  that,  if  the  proxi- 
mate cause  of  the  injury  was  attributable  to  the  want  of  proper  care  on 
the  part  of  defendant's  servant,  the  plaintiff  could  recover,  though  plain- 
tiff's act  in  fettering  the  ass  so  that  he  could  not  get  out  of  the  way  of 
carriages,  and  turning  him  in  the  highway,  was  illegal. 

Motion  for  new  trial. 

Action  by  Davies  against  Mann  to  recover  damages  for  the  negli- 
gent killing  of  plaintiff's  ass.  On  the  trial  there  was  evidence  to 
show  that  plaintiff  fettered  the  forefeet  of  the  ass,  and  turned  him  into 
the  highway  to  graze,  and  that  defendant's  wagon,  with  a  team  of 
three  horses  in  charge  of  his  servant,  came  down  a  slight  descent 
at  a  rapid  pace,  and  ran  over  the  ass ;  that  the  road  was  eight  yards 
wide ;  and  that  the  driver  was  some  little  distance  behind  the  horses. 
The  court,  Erskine,  J.,  charged  the  jury  that,  though  the  act  of  the 
plaintiff,  in  having  the  ass  on  the  highway,  so  fettered  as  to  prevent 
his  getting  out  of  the  way  of  carriages  traveling  along  it,  might  be 
illegal,  still,  if  the  proximate  cause  of  the  injury  was  attributable  to 
the  want  of  proper  conduct  on  the  part  of  the  driver  of  the  wagon,  the 
action  was  maintainable  against  the  defendant,  and,  if  they  thought 
the  accident  might  have  been  avoided  by  the  exercise  of  ordinary  care 
on  the  part  of  the  driver,  to  find  for  plaintiff.  The  jury  found  for 
plaintiff,  damages  40  s.  Defendant  moved  for  a  new  trial. 

ABINGER,  C.  B.  I  am  of  opinion  that  there  ought  to  be  no  rule 
in  this  case.  The  defendant  has  not  denied  that  the  ass  was  law- 
fully in  the  highway,  and  therefore  we  must  assume  it  to  have  been 
lawfully  there;  but,  even  were  it  otherwise,  it  would  have  made  no 
difference ;  for,  as  the  defendant  might,  by  proper  care,  have  avoided 
injuring  the  animal,  and  did  not,  he  is  liable  for  the  consequences  of 
his  negligence,  though  the  animal  may  have  been  improperly  there. 

PARKE,  B.  This  case  was  fully  considered  by  this  court  in  the 
case  of  Bridge  v.  Railway  Co.,  3  Mees.  &  W.  246,  where,  it  appears 


NEGLIGENCE.  571 

to  me,  the  correct  rule  is  laid  down  concerning  negligence,  namely, 
that  the  negligence  which  is  to  preclude  a  plaintiff  from  recovering 
in  an  action  of  this  nature  must  be  such  as  that  he  could,  by  ordinary 
care,  have  avoided  the  consequence  of  the  defendant's  negligence. 
I  am  reported  to  have  said  in  that  case,  and  I  believe  quite  correctly, 
that  "the  rule  of  law  is  laid  down  with  perfect  correctness  in  the  case 
of  Butterfield  v.  Forrester,  n  East,  60,  that,  although  there  may  have 
been  negligence  on  the  part  of  the  plaintiff,  yet  unless  he  might,  by  the 
exercise  of  ordinary  care,  have  avoided  the  consequences  of  the  de- 
fendant's negligence,  he  is  entitled  to  recover;  if  by  ordinary  care 
he  might  have  avoided  them,  he  is  the  author  of  his  own  wrong." 
In  that  case  of  Bridge  y.  Railway  Co.  there  was  a  plea  imputing 
negligence  on  both  sides ;  here  it  is  otherwise,  and  the  judge  sim- 
ply told  the  jury  that  the  mere  fact  of  negligence  on  the  part  of  the 
plaintiff  in  leaving  his  donkey  on  the  public  highway  was  no  answer 
to  the  action,  unless  the  donkey's  being  there  was  the  immediate  cause 
of  the  injury ;  and  that,  if  they  were  of  opinion  that  it  was  caused  by 
the  fault  of  the  defendant's  servant  in  driving  too  fast,  or,  which  is 
the  same  thing,  at  a  smartish  pace,  the  mere  fact  of  putting  the  ass 
upon  the  road  would  not  bar  the  plaintiff  of  his  action.  All  that  is 
perfectly  correct;  for  although  the  ass  may  have  been  wrongfully 
there,  still  the  defendant  was  bound  to  go  along  the  road  at  ^uch  a 
pace  as  would  be  likely  to  prevent  mischief.  Were  this  not  so,  a 
man  might  justify  the  driving  over  goods  left  on  a  public  highway, 
or  even  over  a  man  lying  asleep  there,  or  the  purposely  running 
against  a  carriage  going  on  the  wrong  side  of  the  road. 

GURNEY  and  ROLFE,  BB.,  concurred. 

Rule  refused. 

(This  case  was  the  starting  point  of  a  doctrine  which  has  been  thus  expressed : 
"The  plaintiff  may  recover,  notwithstanding  his  own  negligence  exposed  him 
to  the  risk  of  the  injury  of  which  he  complains,  if  the  defendant,  after  he  be- 
came aware,  or  ought  to  have  become  aware,  of  the  plaintiff's  danger,  failed  to 
use  ordinary  care  to  avoid  injuring  him,  and  he  was  thereby  injured."  Cincin- 
nati, H.  &  D.  R.  Co.  v.  Kassen,  49  Ohio  St.  230,  31  N.  E.  282,  16  L.  R.  A.  674 ; 
Inland  &  S.  B.  Coasting  Co.  v.  Tolson,  139  U.  S.  551,  71  Sup.  Ct  653,  35  L.  Ed. 
270;  Baltimore  Traction  Co.  v.  Appel,  80  Md.  603,  31  Atl.  964;  Tucker's 
Adrn'r  v.  Norfolk  &  W.  R.  Co.,  92  Va.  549,  24  S.  E.  229 ;  Ward  v.  Railroad  Co., 
96  Me.  136,  51  Atl.  947 ;  State  v.  Railroad,  52  N.  H.  528 ;  Menger  v.  Laur,  55  N. 
J.  Law,  205,  26  Atl.  180,  20  L.  R.  A.  61 ;  Prue  v.  New  York,  P.  &  B.  R.  Co.,  18  R. 
I.  360,  27  Atl.  450 ;  Tully  v.  Philadelphia,  W.  &  B.  R.  Co.,  2  Pennewill,  537,  47 
Atl.  1019,  82  Am.  St.  Rep.  425 ;  Memphis  &  C.  R.  Co.  v.  Martin,  131  Ala.  269, 
30  South.  827;  Smith  v.  Railroad,  114  N.  C.  728,  19  S.  E.  863,  923,  25  L.  R. 
A.  287.  Hence  a  railroad  company  has  been  held  liable  for  injury  to  a 
drunken  man  on  the  track  [or  a  man  asleep  on  the  track],  if  the  engineer 
discovered  him,  or  by  reasonable  watchfulness  might  have  discovered  him, 
in  time  to  avoid  injuring  him.  Baker  v.  Railroad,  118  N.  C.  1015,  24  S.  E. 
415.  Some  authorities,  however,  would  expunge  from  the  rule  the  words, 


572  LAW  OF  TORTS. 

"or  ought  to  have  become  aware."  Cullen  v.  Baltimore  &  P.  R.  Co.,  8  App. 
D.  C.  69.  This  question  is  much  discussed  in  Smith  v.  Railroad,  114  N.  C. 
728,  19  S.  E.  863,  923,  25  L.  R.  A.  287. 

In  cases  under  this  doctrine,  wherein  the  plaintiff  is  allowed  to  recover, 
his  negligence  is  deemed  the  remote,  and  that  of  the  defendant  the  proximate, 
cause  of  the  injury.  But  when  the  negligence  of  each  is  a  concurrent  proxi- 
mate cause,  there  can  be  no  recovery.  Whether  plaintiff's  negligence  is  a 
proximate  or  remote  cause  is  at  times  a  difficult  question  to  determine.  Rider 
v.  Syracuse  Rapid  Transit  R.  Co.,  171  N.  Y.  139,  63  N.  E.  836,  58  L.  R.  A.  125.) 


3.  Contributory  negligence  of  children  sui  juris. 

(39  Minn.  164.  39  N.  W.  402,  12  Am.  St.  Rep.  626.) 

TWIST  v.  WINONA  &  ST.  P.  R.  CO. 
(Supreme  Court  of  Minnesota.    August  30,  1888.) 

1.  NEGLIGENCE— CONTRIBUTORY — CHILDREN. 

A  child  of  such  tender  years  as  to  be  incapable  of  exercising  any  Judg- 
ment or  discretion  cannot  be  charged  with  contributory  negligence.  But 
where  a  child  has  attained  such  an  age  as  to  be  capable  of  exercising  his 
judgment  and  discretion,  he  is  responsible  for  the  exercise  of  such  a  de- 
gree of  care  and  vigilance  as  might  reasonably  be  expected  of  one  of  his 
age  and  mental  capacity. 

2.  SAME— PLAYING  ABOUT  RAILROAD  TURN-TABLE. 

A  boy  of  the  age  of  nearly  10}£  years,  and  of  average  intelligence,  who 
had  been  frequently  in  the  vicinity  of  a  railway  turn-table,  and  had  a 
general  knowledge  of  its  structure  and  operation,  and  had  been  repeat- 
edly warned  by  his  father  that  it  was  dangerous  to  play  upon  it,  and 
told  not  to  do  so,  and  knew  that  the  railway  company  prohibited  children 
from  playing  on  the  table,  and  also  knew  that  he  had  no  right  to  play 
upon  it,  and  that  it  was  dangerous  to  do  so,  engaged  with  other  boys  in 
swinging  upon  it  while  in  motion,  and  was  injured  by  his  foot  being  caught 
between  the  arm  of  the  table  and  the  stationary  abutments.  Held,  that 
the  conduct  of  the  boy  amounted  to  contributory  negligence,  although  he 
might  not  have  been  of  sufficient  age  and  discretion  to  understand  and 
comprehend  the  full  extent  of  the  danger  to  which  his  conduct  exposed 
him. 

Appeal  from  District  Court,  Nicollet  County ;  Webber,  Judge. 

Action  by  Frank  Twist  against  the  Winona  &  St.  Peter  Railroad 
Company  to  recover  damages  for  injuries  sustained  by  plaintiff's 
minor  child,  Verne  Twist,  while  upon  defendant's  turn-table.  Ver- 
dict for  plaintiff  for  §5,000.  A  motion  by  defendant  for  judgment 
on  the  special  findings  or  for  a  new  trial  was  overruled,  and  it  ap- 
pealed. 

MITCHELL,  J.  This  action  was  brought  to  recover  damages 
for  personal  injuries  sustained  by  plaintiff's  son  while  playing  on  one 
of  defendant's  turn-tables.  The  table  was  situated  upon  defendant's 


NEGLIGENCE.  5T3 

own  premises,  in'  the  suburbs  of  St.  Peter,  some  five  or  six  hundred 
feet  from  the  depot.  The  premises  were  uninclosed,  but  the  table 
was  not  so  near  any  highway  or  street  as  to  interfere  with  the  safety 
or  convenience  of  public  travel.  It  was  what  is  called  a  "skeleton" 
turn-table,  of  the  kind  in  general  use  by  railways  except  in  round- 
houses. In  accordance  with  the  general  usage,  it  was  not  locked, 
but  was  supplied  with  latches  of  the  usual  kind  to  keep  it  in  place 
when  in  use.  These  latches  weighed  four  or  five  pounds  each,  but 
could  be  lifted  out  of  their  sockets,  and  the  table  set  in  motion,  by 
comparatively  small  children.  Boys  had  been  frequently  in  the  habit 
of  setting  the  table  in  motion,  and  playing  on  it,  and  during  the  15  or 
20  years  it  had  been  there  three  boys  had  been  injured  by  it,  all  of 
which  facts  were  known  to  the  defendant.  The  agents  of  the  rail- 
way company  had  frequently  forbidden  children  from  playing  on  the 
table,  and  were  in  the  habit  of  driving  them  away  when  they  saw 
them  doing  so.  It  does  not  appear  but  that  some  way  might  be 
devised  of  keeping  such  turn-tables  locked  when  not  in  use,  but  the 
evidence  does  show  that  no  such  contrivance  has  yet  been  devised, 
and  that  the  general  custom  is  to  leave  them  unlocked  and  merely  held 
in  place  by  latches,  as  this  one  was.  Plaintiff's  son,  a  boy  of  the  age 
of  10  years  and  4  months,  went,  in  company  with  several  other  boys, 
into  the  vicinity  of  the  table,  and,  after  the  others  had  set  the  table 
in  motion,  he  also  joined  in  swinging  on  it,  and  sustained  the  injuries 
complained  of,  in  the  usual  way,  by  his  foot  being  caught  between 
the  arms  of  the  table  and  the  stationary  abutments.  The  negligence 
charged  against  the  defendant  is  in  not  locking  the  table,  so  that  it  could 
not  be  set  in  motion  by  children. 

The  rule  invoked  by  plaintiff  is  that  laid  down  by  this  court  in 
Keffe  v.  Railroad  Co.,  21  Minn.  207,  18  Am.  Rep.  393,  and  by  the 
supreme  court  of  the  United  States  in  what  may  be  termed  the  pio- 
neer "turn-table  case,"  (Railroad  Co.  v.  Stout,  17  Wall.  657,  21  L.  Ed. 
745)  in  which  it  is  held  that  the  owner  of  dangerous  machinery,  who 
leaves  it  in  an  open  place,  though  on  his  own  land,  where  he  has  rea- 
son to  believe  that  young  children  will  be  attracted  to  play  with  it,  and 
be  injured,  is  bound  to  use  reasonable  care  to  protect  such  children 
from  the  danger  to  which  they  are  thus  exposed.  The  line  of  argu- 
ment adopted  in  the  Keffe  Case,  in  support  of  this  rule,  is  that  such 
machinery,  being  attractive  to  young  children,  presents  to  them  a 
strong  temptation  to  play  with  it,  and  thus  allures  them  into  a  dan- 
ger whose  nature  and  extent  they,  being  without  judgment  and  discre- 
tion, can  neither  apprehend  nor  appreciate,  and  against  which  they 
cannot  protect  themselves ;  that  such  children  may  be  said  to  be 
induced  by  the  owner's  own  conduct  to  come  upon  the  premises ; 
ihat  what  an  express  invitation  is  to  an  adult,  an  attractive  plaything 
is  to  a  child  of  tender  years ;  that  as  to  them  such  machinery  is  a 
hidden  danger, — a  trap.  Much  of  the  briefs  of  counsel,  especially  of 


574  LAW  OF  TORTS. 

• 

that  of  defendant,  is  devoted  to  the  consideration  of  the  doctrine  of 
these  so-called  "turn-table  cases,"  and  of  the  question  of  the  duty, 
if  any,  which  the  owner  of  dangerous  machinery  or  other  articles  sit- 
uate on  his  own  premises  owes  to  intermeddling  or  trespassing  chil- 
dren. The  doctrine  of  these  cases  has  been  questioned  by  some 
courts,  and  repudiated  by  others,  who  hold  that  a  land-owner  is  not 
bound  to  take  active  measures  to  insure  the  safety  of  intruders,  even 
children,  nor  is  he  liable  for  any  injury  resulting  from  the  lawful  use 
of  his  premises  to  one  entering  without  right;  that  to  intruders  or 
trespassers  the  land-owner  owes  no  duty;  and  where  there  is  no  duty 
to  perform  there  can  be  no  negligence.  Frost  v.  Railroad  Co.,  64 
N.  H.  220,  9  Atl.  790,  10  Am.  St.  Rep.  396.  Applied  to  one  of  suffi- 
cient mental  capacity  to  be  a  conscious  trespasser,  this  is  undoubted- 
ly a  sound  rule;  but  if  applied  to  children  of  tender  years,  strictly 
non  sui  juris,  it  would  seem  harsh  and  inhuman.  Properly  qual- 
ified and  limited  in  its  application,  the  doctrine  of  the  Keffe  Case  is, 
in  our  judgment,  in  accordance  with  both  reason  and  the  dictates  of 
humanity.  But  some  of  the  cases  have  undoubtedly  gone  too  far. 
By  adopting  an  extreme  or  extraordinary  standard  of  duty  on  the  part 
of  the  land-owner  on  the  one  side,  and  on  the  other  side  by  at- 
tributing the  conduct  of  all  children  to  their  childish  instincts  so  as 
to  exempt  them  from  the  charge  of  contributory  negligence,  regard- 
less of  age  or  mental  capacity,  it  is  obvious  that  the  rule  of  the  Keffe 
and  similar  cases  is  capable  of  indefinite  and  unbounded  applicability. 
To  the  irrepressible  spirit  of  curiosity  and  intermeddling  of  the  aver- 
age boy  there  is  no  limit  to  the  objects  which  can  be  made  attractive 
playthings.  In  the  exercise  of  his  youthful  ingenuity,  he  can  make  a 
plaything  out  of  almost  anything,  and  then  so  use  it  as  to  expose 
himself  to  danger.  If  all  this  is  to  be  charged  to  natural  childish  in- 
stincts, and  the  owners  of  property  are  to  be  required  to  anticipate 
and  guard  against  it,  the  result  would  be  that  it  would  be  unsafe  for  a 
man  to  own  property,  and  the  duty  of  the  protection  of  children  would 
be  charged  upon  every  member  of  the  community  except  the  parents 
of  the  children  themselves.  This  court  itself,  if  it  has  not  modified 
the  Keffe  Case,  has  at  least  indicated  that  the  doctrine  which  it  an- 
nounces is  not  to  be  given  any  such  extreme  and  unlimited  applica- 
tion. Kolsti  v.  Railroad  Co.,  32  Minn.  133,  19  N.  W.  655 ;  Emerson 
v.  Peteler,  35  Minn.  481,  29  N.  W.  311,  59  Am.  Rep.  337.  It  is  un- 
necessary, however,  to  determine  whether,  upon  the  facts  in  the  pres- 
ent case,  the  finding  of  negligence  on  the  part  of  the  defendant  can  be 
sustained,  inasmuch  as  it  is  clearly  established  by  both  the  evidence 
and  the  special  findings  of  fact  that  the  boy  himself  was  guilty  of 
contributory  negligence.  The  law  very  properly  holds  that  a  child 
of  such  tender  years  as  to  be  incapable  of  exercising  judgment  and 
discretion  cannot  be  charged  with  contributory  negligence ;  but  this 
principle  cannot  be  applied  as  a  rule  of  law  to  all  children,  without 


NEGLIGENCE.  573 

regard  to  their  age  or  mental  capacity.  Children  may  be  liable  for 
their  torts  or  punished  for  their  crimes,  and  they  may  be  guilty  of 
negligence  as  well  as  adults.  The  law  very  humanely  does  not  re- 
quire the  same  degree  of  care  on  the  part  of  a  child  as  of  a  person 
of  mature  years,  but  he  is  responsible  for  the  exercise  of  such  care 
and  vigilance  as  may  reasonably  be  expected  of  one  of  his  age  and 
capacity;  and  the  want  of  that  degree  of  care  is  negligence.  The 
fact  that  he  may  not  have  the  mature  judgment  of  an  adult  will  not 
excuse  a  child  from  exercising  the  degree  of  judgment  and  discre- 
tion which  he  possesses,  or  for  disregarding  the  warnings  and  orders 
of  his  seniors,  and  heedlessly  rushing  into  known  danger.  In  the 
Stout  Case,  the  defendant  made  an  express  disclaimer  of  any  con- 
tributory negligence  on  the  part  of  the  plaintiff.  In  the  Keffe  Case, 
which  was  disposed  of  on  the  pleadings,  this  court  said:  "It  was  not 
urged  upon  the  argument  that  plaintiff  was  guilty  of  contributory  neg- 
ligence, and  we  have  assumed  that  he  exercised,  as  he  was  bound  to 
do,  such  reasonable  care  as  a  child  of  his  age  and  understanding 
was  capable  of  using."  And  as  was  remarked  in  the  Keffe  Case,  in 
the  cases  cited  in  support  of  these  "turn-table  cases,"  the  principal 
question  discussed  is  not  whether  the  defendant  owed  the  plaintiff  the 
duty  of  care,  but  whether  the  defendant  was  absolved  from  liability 
for  breach  of  duty  by  reason  of  the  fact  that  the  plaintiff  was  a  tres- 
passer, who  by  his  own  act  contributed  to  the  injury;  and  the  dis- 
tinction is  not  sharply  drawn  between  the  effect  of  plaintiff's  trespass 
as  a  bar  to  his  right  to  require  care,  and  the  plaintiff's  contributory 
negligence  as  a  bar  to  his  right  to  recover  for  the  defendant's  failure 
to  exercise  such  care  as  it  was  his  duty  to  use.  But  the  authorities 
are  all  one  way,  and  to  the  effect  that  even  a  child  is  bound  to  use 
such  reasonable  care  as  one  of  his  age  and  mental  capacity  is  capa- 
ble of  using;  and  his  failure  to  do  so  is  negligence.  Wendell 
v.  Railroad  Co.,  91  N.  Y.  420;  Messenger  v.  Dennie,  141  Mass.  335, 
5  N.  E.  283;  Railway  Co.  v.  Eininger,  114  111.  79,  29  N.  E.  196; 
Brown  v.  Railroad  Co.,  58  Me.  384;  Achtenhagen  v.  City  of  Water- 
town,  18  Wis.  331,  84  Am.  Dec.  769;  Masser  v.  Railroad  Co.,  68 
Iowa,  602,  27  N.  W.  776;  Murray  v.  Railroad  Co.,  93  N.  C.  92 ;  Lud- 
wig  v.  Pillsbury,  35  Minn.  256,  28  N.  W.  505 ;  Railroad  Co.  v.  Glad- 
mon,  15  Wall.  401,  21  L.  Ed.  114;  Gillespie  v.  McGowan,  100  Pa. 
144,  45  Am.  Rep.  365. 

The  evidence  in  the  present  case  shows  without  conflict  substantial- 
ly the  following  facts :  The  boy  was  nearly  iol/2  years  old,  and  of  at 
least  average  intelligence.  He  had  been  at  school  since  he  was  6 
or  7  years  old.  His  father  was  a  railroad  man,  in  the  employment 
of  the  defendant  around  the  yard  and  depot,  and  the  boy  had  been 
frequently  around  the  railroad  grounds  and  the  turn-table  with  his 
father.  He  was  evidently  familiar,  at  least  in  a  general  way,  with 
the  working  of  the  turn-table,  and  the  use  of  the  latches.  His 


576  LAW  OF  TORTS. 

i 

father  had  repeatedly  warned  him  against  going  on  the  turn-table,  and 
told  him  of  the  danger,  and  that  he  must  not  go  on  it.  He  evidently 
had  quite  a  lively  sense  of  the  danger  of  playing  on  the  table,  and 
of  the  manner  in  which  accidents  were  liable  to  occur  to  those  swing- 
ing on  it.  The  boy  himself  admits  that  he  knew  there  was  great  dan- 
ger of  getting  hurt  on  it.  He  knew  that  playing  on  it  was  forbidden 
by  the  railroad  company,  and  that  if  its  agents  saw  children  doing 
so  they  would  drive  them  off.  It  is  suggested  that  his  motive  in 
going  to  the  table  was  to  try  to  induce  the  other  boys  to  get  off  lest 
they  might  get  hurt.  But  if  he  had  such  a  realizing  sense  of  their 
danger,  so  much  the  more  inexcusable  was  it  for  him  to  go  and  do 
precisely  what  he  knew  was  exposing  them  to  danger.  Upon  this 
state  of  the  evidence  the  jury,  in  addition  to  their  general  verdict, 
found  the  following  facts  in  answer  to  the  following  questions  sub- 
mitted to  them :  "First.  Did  Verne  Twist,  when  he  went  to  play  on 
this  turn-table,  on  the  day  when  he  was  hurt,  know  that  it  was  dan- 
gerous ?  Answer.  Yes.  Second.  Did  Verne  Twist,  when  he  went  to 
play  on  this  turn-table,  on  the  day  when  he  was  hurt,  know  that  he 
had  no  right  to  go  there,  and  that  it  was  dangerous  to  play  on  the 
turn-table?  A.  Yes.  Third.  Was  Verne  Twist,  when  he  went  to 
play  "on  this  turn-table,  on  the  day  when  he  was  hurt,  of  sufficient 
age  and  discretion  to  understand  and  comprehend  the  danger  he 
subjected  himself  to?  A.  No."  These  special  findings  must,  if  pos- 
sible, be  so  construed  as  to  be  consistent  with  each  other,  and  also 
supportable  by  the  evidence.  If  the  third  finding  means  that  the  boy 
was  of  such  tender  years  as  to  be  incapable  of  exercising  any  judgment 
and  discretion,  or  of  understanding  that  his  acts  exposed  him  to  dan- 
ger, it  would  be  inconsistent  with  the  other  findings,  and  wholly  un- 
supported by  the  evidence.  In  the  light  of  the  testimony,  and  taken 
in  connection  with  the  previous  findings,  all  that  it  can  mean  is  that 
while  the  boy  knew  that  he  had  no  right  to  play  on  the  turn-table, 
and  that  it  was  dangerous  to  do  so,  yet  he  did  not  fully  understand 
or  appreciate  the  extent  of  the  danger  in  all  its  possibilities.  But  this 
may  be  said  of  almost  every  case  of  contributory  negligence,  even  on 
the  part  of  adults.  No  one  voluntarily  and  unnecessarily  enters  a 
danger  which  he  knows  to  exist  without  expecting  to  escape  it.  In 
all  cases  of  conscious  self-exposure  there  is  a  failure  to  realize  the  ex- 
tent or  degree  of  the  risk,  but  the  act  is  none  the  less  contributory 
negligence,  if  the  party  fails  to  exercise  ordinary  care.  In  the  pres- 
ent case,  while  the  boy  did  not  realize  the  extent  of  the  danger  as 
fully  as  would  an  adult,  yet  he  knew  that  he  had  no  right  to  go  upon 
the  turn-table ;  that  his  father  had  warned  him  that  it  was  dangerous, 
and  he  himself  knew  that  it  was  dangerous.  Yet  he  goes,  a  con- 
scious trespasser,  and  does  the  forbidden  and  dangerous  act.  While 
we  are  not  disposed  to  adopt  a  severe  rule  by  which  to  judge  the  con- 
duct of  childhood,  yet  such  conduct  on  the  part  of  an  intelligent  boy 


NEGLIGENCE.  677 

of  nearly  10^  years  amounts  to  contributory  negligence,  and  cannot 
be  excused  on  the  plea  of  childish  instincts.  We  are  of  opinion  that 
upon  the  special  findings  the  defendant  was  entitled  to  judgment. 

The  cause  is  remanded,  with  directions  to  the  district  court  to  en- 
ter judgment  for  defendant. 

(As  to  the  rule  that  a  child  old  enough  to  be  capable  of  negligence  Is  only 
held  to  the  exercise  of  such  a  degree  of  care  as  may  be  reasonably  expected 
from  a  person  of  his  years,  intelligence,  capacity,  and  maturity,  see  also 
Thurber  v.  Harlem  Bridge,  M.  &  F.  R.  Co.,  60  N.  Y.  326 ;  Zwack  v.  New  York, 
L.  E.  &  W.  R.  Co.,  160  N.  Y.  362,  54  N.  E.  785 ;  Rachmel  v.  Clark,  205  Pa.  314, 
54  Atl.  1027,  62  L.  R.  A.  959;  Consolidated  Traction  Co.  v.  Scott,  58  N.  J. 
Law,  682,  34  Atl.  1094,  33  L.  R.  A.  122,  55  Am.  St.  Rep.  620;  City  of  Pekin 
v.  McMahon,  154  111.  141,  39  N.  E.  484,  27  L.  R.  A.  206,  45  Am.  St.  Rep.  141; 
Collins  v.  South  Boston  R.  Co.,  142  Mass.  301,  7  N.  E.  856,  56  Am.  Rep.  675; 
Baltimore  City  R.  Co.  v.  McDonnell,  43  Md.  534;  Cleveland  Rolling  Mill  Co. 
v.  Corrigan.  46  Ohio  St.  283.  20  N.  E.  466,  3  L.  R.  A.  385. 

The  doctrine  of  the  so-called  "turntable  cases,"  or  "attractive  object"  cases, 
has,  in  recent  years,  been  rejected  in  a  number  of  the  states.  Frost  v.  Rail- 
road Co.,  64  N.  H.  220,  9  Atl.  790,  10  Am.  St.  Rep.  396 ;  Daniels  v.  New  York 
&  N.  E.  R.  Co.,  154  Mass.  349,  28  N.  E.  283,  13  L.  R.  A.  248,  26  Am.  St.  Rep. 
253;  Walsh  v.  Fitchburg  R.  Co.,  145  N.  Y.  301,  39  N.  E.  1068,  27  L.  R.  A. 
724,  45  Am.  St.  Rep.  615;  Delaware,  L.  &  W.  R.  Co.  v.  Reich,  61  N.  J.  Law, 
635,  40  Atl.  682,  41  L.  R.  A.  831,  68  Am.  St.  Rep.  727 ;  Paolino  v.  McKendall  [R. 
I.]  53  Atl.  268,  60  L.  R.  A.  133 ;  Uthermohlen  v.  Boggs  Run  Co.,  50  W.  Va.  457, 
40  S.  E.  410,  55  L.  R.  A.  911,  88  Am.  St.  Rep.  884 ;  Ryan  v.  Tower,  128  Mich. 
463,  87  N.  W.  644,  55  L.  R.  A.  310,  92  Am.  St.  Rep.  481 ;  Savannah,  F.  &  W. 
Ry.  Co.  v.  Beavers,  113  Ga.  398,  39  S.  E.  82.  54  L.  R.  A.  314;  cf.  Barney  v. 
Hannibal  &  St.  J.  R.  Co.,  126  Mo.  372,  28  S.  W.  1069,  26  L.  R.  A.  847.  "An  in- 
vitation to  a  child,"  it  is  said,  "will  not  be  implied  from  the  fact  that  a  turn- 
table, obviously  designed  for  another  purpose,  furnishes  a  place  for  play 
which  is  attractive  to  children."  Turess  v.  New  York,  S.  &  W.  R.  Co.,  61 
N.  J.  Law,  314,  40  Atl.  614.  In  fact,  children  going  on  others'  premises  under 
such  circumstances  have  been  held  trespassers,  and  for  that  reason  debarred 
from  recovery,  even  though  they  were  not  old  enough  to  be  chargeable  with 
negligence.  Buch  v.  Amory  Mfg.  Co.,  69  N.  H.  257,  44  Atl.  809,  76  Am.  St.  Rep. 
163,  and  cases  supra;  Rodgers  v.  Lees,  140  Pa.  475,  21  Atl.  399,  12  L.  R.  A. 
216,  23  Am.  St.  Rep.  250.  On  the  other  hand,  the  "turntable  cases"  have  been 
sustained  by  the  United  States  Supreme  Court,  and  in  many  of  the  states, 
and  various  other  attractions  which  entice  children  on  the  lands  of  others,  as 
ponds,  swimming  pools,  machinery,  lumber  piles,  etc.,  have  been  held  to  come 
within  the  same  principle.  Union  Pac.  Ry.  Co.  v.  McDonald,  152  U.  S.  262, 
14  Sup.  Ct.  619,  38  L.  Ed.  434;  City  of  Pekin  v.  McMahon,  154  111.  141,  39  N. 
E.  484,  27  L.  R.  A.  206,  45  Am.  St.  Rep.  114 ;  Edgington  v.  Burlington,  C.  R. 
&  N.  R.  Co.,  116  Iowa,  410,  90  N.  W.  95,  57  L.  R.  A.  561  [reviewing  the  cases 
on  both  sides  of  the  question] ;  Price  v.  Water  Co.,  58  Kan.  551,  50  Pac.  450, 
62  Am.  St.  Rep.  625;  Bramson's  Adm'r  v.  Labrot,  81  Ky.  638,  50  Am.  Rep, 
193 ;  Alabama  G.  S.  R.  Co.  v.  Crocker,  131  Ala.  584,  31  South.  561 ;  Barrett 
v.  Railroad  Co.,  91  Cal.  296,  27  Pac.  666,  25  Am.  St.  Rep.  186 ;  Stendal  v.  Boyd, 
67  Minn.  279,  69  N.  W.  899.) 

CHASE  (2o  ED.) — 37 


578  LAW  OF  TORTS. 


4.  Imputation  of  negligence  to   children  non  sui  juris. — 
Different  theories. 

—   A.    The  rule  that  a  parent's  negligence  will  be  imputed  to  his  child. 

(38  N.  Y.  455,  98  Am.  Dec.  66.) 

MANGAM  v.  BROOKLYN  CITY  R.  CO.  (in  part). 
(Court  of  Appeals  of  New  York.     September  Term,  1868.) 

1.  NEGLIGENCE  OF  PARENT  IMPUTABLE  TO  CHILD. 

An  infant  of  tender  years  is  non  sui  juris.  His  custody  is  confided  by 
law  to  his  parents  (or  those  standing  in  loco  parentis) ;  and,  as  the  child 
has  not  the  discretion  necessary  for  personal  protection,  the  parent  is 
held  in  law'  to  exercise  it  for  him,  and,  in  cases  of  personal  injuries  re- 
ceived from  the  negligence  of  others,  the  law  imputes  to  the  infant  the 
negligence  of  the  parents. 

2.  EVIDENCE  OF  PARENT'S  NEGLIGENCE. 

The  escape  of  a  child  three  or  four  years  old,  without  its  parent's 
knowledge,  into  the  street,  through  an  open  window  coming  to  within 
four  feet  of  the  floor,  the  doors  being  locked,  is  not  conclusive  evidence 
of  the  parent's  negligence;  and,  if  the  child  be  injured  in  the  street  by 
the  negligence  of  defendant  and  brings  action  to  recover  damages,  a  non- 
suit, on  the  ground  that  the  parent  was  guilty  of  negligence  as  matter 
of  law,  is  improper. 

Action  to  recover  for  an  injury  sustained  by  being  struck  by  a 
car  on  defendant's  road  in  Brooklyn.  The  plaintiff  lived  with  his 
father  in  Brooklyn ;  about  twenty  minutes  before  the  injury,  he  was 
upon  a  balcony  at  the  rear  of  the  house;  there  was  no  opportunity 
to  get  from  the  rear  into  the  street ;  he  was  at  this  time  seen  by  his 
sister,  who  went  with  another  woman  into  the  yard  to  hang  out 
clothes ;  the  only  mode  by  which  he  could  get  into  the  street  was 
from  the  front  part  of  the  house ;  the  front  doors  were  closed  and 
locked;  there  was  a  window  in  the  front,  coming  to  within  about 
four  feet  of  the  floor,  which  was  raised  from  the  bottom ;  this  was  the 
only  mode  of  egress.  The  plaintiff,  after  getting  out  of  the  house, 
passed  down  North  Tenth  street,  toward  First  street ;  the  car  in  ques- 
tion was  running  along  First  street,  toward  Tenth ;  at  the  junction, 
the  plaintiff  crossed  the  track  of  the  road  in  front  of  the  mules  drawing 
the  car;  he  got  out  of  the  way  of  the  mules,  but  was  struck  by  the 
dash-board  of  the  car  and  knocked  down,  and  received  the  injury. 
The  driver  of  the  car  had  caught  a  pigeon,  which  he  had  in  his  hands 
and  was  sitting  down  looking  at  it,  having  wound  his  lines  around 
the  brake,  and  was  paying  no  attention  to  his  team,  or  to  what  might 
be  on  the  track.  A  nonsuit  was  set  aside. 

GROVER,  J.  The  nonsuit  granted  at  the  Circuit  can  only  be 
sustained  upon  the  ground  that  the  evidence  failed  to  show  that  the 


NEGLIGENCE}.  579 

injury  received  by  the  plaintiff  resulted  from  the  negligence  of  the 
driver  of  the  car,  or  that  it  showed  the  negligence  of  the  plaintiff,  or 
that  of  those  having  the  care  of  him,  and  whose  negligence  was  im- 
putable  to  him,  contributed  to  the  injury  received.  Upon  the  first 
ground,  no  question  is  made  by  the  counsel  of  the  appellant.  The 
negligence  of  the  driver  was  clearly  proved.  It  was  his  duty,  while 
driving  in  the  streets  of  Brooklyn,  to  keep  entire  control  of  his  team 
as  far  as  practicable ;  to  be  in  a  position  to  speedily  apply  the  brake ; 
and  to  be  vigilant  in  observing  the  track,  so  as  to  enable  him,  as 
far  as  practicable,  to  avoid  inflicting  injury  upon  others.  All  of  this 
was  omitted  by  the  driver,  upon  the  occasion  in  question.  Upon  the 
latter  ground  there  is  more  doubt.  In  Hartfield  v.  Roper,  21  Wend. 
615,  34  Am.  Dec.  273,  it  was  held,  that  when  a  child  of  such  tender 
years  as  to  be  incapable  of  avoiding  danger  was  permitted  by  his 
parents  or  guardians  to  be  in  the  public  streets,  and  then  received  an 
injury  by  being  run  over  by  a  traveler  who  failed  to  discover  him 
while  standing  or  sitting  in  the  traveled  track,  they  could  not  recover 
unless  the  traveler  was  guilty  of  gross  negligence,  or  inflicted  the  in- 
jury voluntarily.  The  principle  of  this  case  has  been  since  its  de- 
termination often  applied  by  the  courts  of  this  State  to  analogous 
cases,  and  must  now  be  regarded  as  the  settled  law,  notwithstanding 
a  somewhat  different  rule  prevails  in  some  of  the  other  States.  See 
Daley  v.  Norwich  R.  Co.,  26  Conn.  591,  68  Am.  Dec.  413,  and  cases 
cited.  This  brings  us  to  an  inquiry  as  to  the  degree  of  care  required 
from  parents  and  guardians  in  keeping  such  a  child  from  the  street. 
The  counsel  for  the  defendant  insists  that  it  must  be  such  care  as 
effectually  to  accomplish  the  object,  and  that  any  thing  short  of  this 
is  negligence.  While  on  the  other  hand  it  is  claimed  by  the  plaintiff 
that  to  constitute  negligence  in  the  parent  or  guardians  there  must 
be  an  omission  of  such  care  as  persons  of  ordinary  prudence  exercise 
and  deem  adequate  for  that  purpose.  The  latter  appears  to  be  the 
conclusion  required  by  the  analogies  of  the  law.  Legal  negligence  is 
the  omission  of  such  care  as  persons  of  ordinary  prudence  exercise 
and  deem  adequate  to  the  circumstances  of  the  case.  This  definition 
applied  to  the  point  in  consideration  will  exonerate  the  parents  from 
the  charge  of  negligence,  if  they  used  that  degree  of  care.  This  con- 
clusion is  also  supported  by  the  reasoning  in  Hartfield  v.  Roper,  su- 
pra. It  is  there  said  that  the  law  has  placed  infants  in  the  hands  of 
vigilant  and  generally  affectionate  keepers,  their  own  parents,  and 
if  there  be  any  legal  responsibility  for  damages,  it  lies  on  them. 
Surely  an  infant  could  not  recover  against  his  parent  or  guardian  for 
negligence  in  permitting  him  to  escape  into  the  street,  unless  he  could 
show  some  omission  of  ordinary  care  to  prevent  it.  The  inquiry  up- 
on this  point  then  is,  whether  the  parents  of  the  plaintiff  were  guilty 
of  negligence  in  permitting  him  to  get  into  the  street ;  for  if  not,  the 
nonsuit  cannot  be  sustained  upon  that  ground.  The  evidence  shows 


580  LAW   OF   TORTS. 

» 

that  he  was  not  permitted  to  go  unattended  in  the  street ;  that  he  was 
lost  sight  of  by  his  sister  for  only  about  twenty  minutes ;  that  his 
only  means  of  access  to  the  street  was  by  climbing  out  of  an  open  win- 
dow, which  only  came  within  four  feet  of  the  floor.  There  was  no 
evidence  that  he  had  ever  before  got  out  of  this  window,  or  attempted 
to.  I  do  not  think  that  failing  to  guard  this  aperture  will  warrant 
the  conclusion  as  matter  of  law,  that  the  parent  was  guilty  of  negli- 
gence. At  most  it  should  only  have  been  submitted  to  the  jury  as  a 
question  of  fact.  The  only  remaining  question  is,  whether  the  plain- 
tiff himself  was  guilty  of  negligence  contributing  to  the  injury. 
After  getting  into  the  street,  he  ran  along  Tenth  until  he  came  to 
First,  and  then  ran  across  the  track  ahead  of  the  team,  getting  out  of 
their  way,  but  not  out  of  the  way  of  the  dash-board  of  the  car.  He 
was  too  young  to  possess  discretion  to  guard  against  that  danger, 
and  his  not  doing  so  is  not,  under  the  circumstances,  to  be  regarded  as 
negligence  in  him. 

The  order  appealed  from  must  be  affirmed,  and  judgment  final,  upon 
the  stipulation,  be  given  to  the  plaintiff. 

MASON,  J.  In  law  some  persons  are  independent,  and  some  are 
subject  to  another,  or  as  it  is  expressed  in  the  civil  law,  "quaedam 
personae  sui  juris  sunt,  quaedam  alicui  juri  subjectae."  This  rule 
applies  to  infants  in  their  relations  to  society,  who  are  of  such  ten- 
der age  that  they  are  incapable  of  self-control  and  personal  protec- 
tion. An  infant  in  its  first  years  is  not  sui  juris.  It  belongs  to  an- 
other, to  whom  discretion  in  the  care  of  its  person  is  exclusively  con- 
iided.  The  custody  of  the  infant  of  tender  years  is  confided  by  law 
to  its  parents,  or  those  standing  in  loco  parentis,  and  not  having  that 
discretion  necessary  for  personal  protection,  the  parent  is  held  in 
law  to  exercise  it  for  him,  and  in  cases  of  personal  injuries  received 
from  the  negligence  of  others,  the  law  imputes  to  the  infant  the  neg- 
ligence of  the  parents.  The  infant  being  non  sui  juris,  and  having  a 
keeper  in  law  to  whose  discretion,  in  the  care  of  his  person,  he  is 
confided,  his  acts,  as  regards  third  persons,  must  be  held  in  law  the 
act  of  the  infant;  his  negligence,  the  negligence  of  the  infant.  The 
law  has  not  fixed  the  age  at  which  the  infant  shall  be  deemed  in  law 
non  sui  juris,  although  it  may  be  safely  assumed  in  law,  that  an  infant 
of  the  age  of  three  years  and  seven  months  is  not  sui  juris.  In  the 
case  of  Hartfield  v.  Roper,  21  Wend.  615,  34  Am.  Dec.  273,  it  was 
held,  that  an  infant  of  the  age  of  two  years  was  not  sui  juris,  while  in 
the  case  of  McMahon  v.  Mayor,  etc.,  of  New  York,  33  N.  Y.  642, 
it  was  held  that  an  intelligent  boy  of  the  age  of  eleven  years  was  sui 
juris.  The  case  of  Honesberger  v.  Second  Ave.  R.  Co.,  33  How.  195, 
where  the  infant  was  a  sprightly  boy,  of  the  age  of  six  or  seven 
years,  the  case  was  regarded  so  near  the  border  line,  that  it  was  held 
proper  to  submit  the  case  to  the  jury,  to  decide  whether  the  infant  was 


NEGLIGENCE.  681 

sui  juris  or  not.  If  there  were  any  doubt  as  to  this  child  being  of  the 
age  and  capacity  that  in  law  he  should  be  held  sui  juris,  it  certainly 
should  have  been  left  to  the  jury  to  say  by  their  verdict  whether  he 
was  so  or  not.  I  apprehend,  however,  that  it  is  not  to  be  doubted,  in 
a  case  like  the  present,  that  an  infant  of  three  or  four  years  of  age 
is  not  to  be  deemed  sui  juris,  but  to  be  deemed  in  law  as  in  the  keep- 
ing of  his  parents,  or  other  lawful  custodians.  The  rule  is  well  set- 
tled by  the  adjudications  in  this  State,  that  such  an  infant  who  is 
non  sui  juris,  is  incapable  of  forfeiting  its  remedy  against  a  con- 
ceded wrong-doer,  by  his  personal  negligence,  and  it  is  for  this  very 
reason  that  it  is  constructively  chargeable  with  the  negligence  of  its 
legal  custodian. 

As  this  child  had  not  by  any  personal  wrong  of  its  own  forfeited 
its  right  of  action  for  this  injury,  the  defense  in  this  case  must  be 
predicated  upon  constructive  negligence,  or  upon  imputing  to  the 
plaintiff  and  charging  him  with  the  negligence  of  his  mother.  This  is 
a  good  defense  in  law,  if  it  is  made  out,  and  the  only  question  is,  wheth- 
er upon  the  evidence  in  the  case,  this  defense  is  so  clearly  manifest, 
that  the  judge  was  justified  in  taking  the  case  from  the  jury.  I  do 
not  think  it  was,  and  consequently  the  General  Term  were  right  in 
granting  a  new  trial.  It  was  to  say  the  least  a  fair  question  for  the 
jury  upon  the  evidence,  whether  the  imputation  of  negligence  can 
be  attributed  to  the  mother,  in  the  escape  of  this  child  from  the 
house  into  the  street,  where  it  was  injured,  and  if  she  was  not  guilty 
of  negligence  in  this  particular,  then  the  plaintiff  was  clearly  enti- 
tled to  recover,  for  the  defendant's  driver  was  certainly  guilty  of  neg- 
ligence in  running  over  the  plaintiff.  There  can  be  no  doubt,  that 
had  he  been  giving  ordinary  attention  to  his  duties  this  injury  would 
never  have  occurred ;  and  I  cannot  but  think  it  was  a  grossly  negligent 
act  in  this  driver  to  wind  his  lines  around  the  brake,  and  trust  to  the 
mules  entirely  to  govern  themselves  in  the  streets  of  this  populous 
city,  and  giving  his  exclusive  attention  to  the  bird  he  had  caught, 
and  not  to  his  team.  An  infant  of  even  this  tender  age  is  not  an 
outlaw  in  the  street,  where  all  persons  may  be  grossly  negligent  in 
regard  to  his  person ;  and  where  he  escapes  from  the  house  of  his 
keepers  without  any  fault  or  negligence  of  those  having  the  custody 
of  him,  then  the  rule  of  law,  that  it  is  a  defense  to  those  who  have  neg- 
ligently injured  him,  to  show  that  his  personal  negligence  concurred 
in  producing  the  injury,  does  not  apply. 

The  child  being  non  sui  juris,  cannot  personally  be  held  to  any  rule 
of  conduct  in  regard  to  such  negligence.  He  is  incapable  in  law  of 
doing  any  act  that  will  deprive  him  of  his  action  for  injuries  negligent- 
ly inflicted  upon  him  by  others.  His  parent  or  other  custodian  can- 
not be  chargeable  with  negligence  for  his  conduct  in  the  street,  where 
the  child  has  escaped  from  the  house  without  their  knowledge  or 


582  LAW  OF  TORTS. 

» 

ligence.  Any  other  rule  would  be  unjust  and  unreasonable,  as  af- 
fording no  protection  to  helpless  infants  against  injuries  from  the 
negligent  and  careless  conduct  of  others.  In  short,  it  would  make 
them  little  less  than  outlaws  in  the  street,  unless  attended  by  their 
parents  or  other  lawful  custodians.  They  are  not  beyond  the  pale  of 
the  law  when  in  the  streets.  Common  humanity  is  alive  to  their 
protection,  and  the  law,  both  in  reason  and  justice,  and  out  of  com- 
passion to  their  weakness  and  inability  to  protect  themselves,  should 
throw  a  broader  shield  of  protection  around  them  against  injuries 
from  the  careless  conduct  of  the  strong,  than  it  affords  to  an  adult, 
who  is  capable  of  self-defense  and  protection. 

There  is  no  reason,  propriety  or  justice  in  the  rule  which  would 
give  no  more  protection  to  the  one  than  to  the  other.  The  law  in 
this  class  of  cases  is  not  subject  to  such  a  reproach.  It  says,  the  in- 
fant of  three  and  a  half  years  cannot  be  expected  to  exercise  discretion 
and  govern  himself  cautiously  as  regards  danger,  and  consequently 
he  shall  be  held  in  law  non  sui  juris,  and  none  who  have  negligently 
and  carelessly  injured  him  should  be  permitted  to  say  he  was  per- 
sonally negligent,  and  thereby  contributed  to  the  injury.  The  law 
very  wisely  says :  At  the  same  time,  his  keeper  or  custodian-  must 
not  be  guilty  of  any  negligence  in  allowing  him  to  be  exposed  to  the 
danger;  if  he  does,  his  custodian's  negligence  shall  be  imputed  to 
him. 

Applying  these  principles  to  this  case,  the  judge  at  Circuit  was  not 
justified  in  nonsuiting  the  plaintiff,  and  the  General  Term  were  right 
in  granting  a  new  trial,  and  the  order  should  be  affirmed,  and  judg- 
ment given  for  the  plaintiff. 

Judgment  affirmed. 

(This  doctrine  is  supported  in  a  number  of  the  states.  O'Brien  v.  Mc- 
Glinchy,  68  Me.  552;  Wright  v.  Maiden  &  M.  R.  Co.,  4  Allen,  283;  Casey  v. 
Smith,  152  Mass.  294,  25  N.  E.  734,  9  L.  R.  A.  259,  23  Am.  St.  Rep.  842 ;  Mc- 
Mahon  v.  Northern  Cent.  Ry.  Co.,  39  Md.  439 ;  Fitzgerald  v.  Railroad  Co.,  29 
Minn.  336,  13  N.  W.  168,  43  Am.  Rep.  212;  Weil  v.  Dry  Dock.  E.  B.  &  B.  R. 
Co.,  119  N.  Y.  147,  23  N.  E.  487;  Neun  v.  .Rochester  R.  Co.,  165  N.  Y.  146,  58 
N.  E.  876.) 


(63  N.  Y.  104,  20  Am.  Rep.  510.) 

McGARRY  v.  LOOMIS  et  al.  (in  part). 

(Court  of  Appeals  of  New  York.    November  9,  1875.) 

1.    iMPtJTATION   OF  PARENTS'    NEGLIGENCE  TO  CHILD— EFFECT   OF  CHILD'S   CON- 
DUCT. 

Though  the  negligence  of  parents  in  exposing  a  child  non  sui  juris  to 
danger  may  be  imputed  to  the  child,  still,  if  the  child  has  not  committed 
or  omitted  an  act  which  would  constitute  negligence  in  a  person  of  years 
of  discretion,  an  injury  by  the  negligence  of  another  cannot  be  defended 


NEGLIGENCE.  583 

upon  the  alleged  negligence  of  the  parents.  If  the  child  Is  in  a  lawful 
place  and  exercising  what  would  be  deemed  ordinary  care  in  an  adult, 
it  may  recover  for  an  injury  by  another's  negligence,  irrespective  of  the 
conduct  of  the  parents.  Under  such  circumstances,  the  conduct  of  the 
parents  is  too  remote. 

2.  SAME. 

Where  a  child  four  years  old  was  on  the  sidewalk,  and  was  injured 
by  steam  negligently  conducted  from  defendants'  mill  under  the  sidewalk, 
while  exercising  what  would  be  regarded  as  ordinary  care  in  an  adult, 
the  question  of  the  negligence  of  its  parents  is  immaterial  in  determining 
its  right  to  recover  for  the  injury. 

This  action  was  Brought  to  recover  damages  for  injuries  to  plain- 
tiff, alleged  to  have  been  occasioned  by  defendants'  negligence.  De- 
fendants were  carrying  on  a  planing  mill  in  the  city  of  Brooklyn. 
They  used  a  steam  engine,  from  which  waste  hot  water  and  steam  were 
conducted  by  a  pipe  under  the  sidewalk  to  a  hole  inside  the  curbstone, 
which  contained  hot  water  and  steam  coming  from  the  pipe.  Plain- 
tiff, a  child  a  little  over  four  years  of  age,  who  lived  with  his  par- 
ents on  the  street,  went  out  upon  the  sidewalk,  fell  into  the  hole, 
and  was  severely  scalded. 

From  a  judgment  of  the  General  Term  of  the  Supreme  Court  af- 
firming a  judgment  in  favor  of  plaintiff  entered  upon  a  verdict,  and 
affirming  an  order  denying  a  motion  for  a  new  trial,  defendant  appeals. 
Affirmed. 

CHURCH,  C.  J.  The  question  of  the  defendants'  negligence  in 
carrying  a  steam  pipe  from  their  factory  under  the  sidewalk,  and  dis- 
charging the  same  so  as  to  cause  a  pool  of  hot  water  on  and  adjacent  to 
the  walk,  in  which  the  plaintiff  was  found  injured,  was  properly  sub- 
mitted to  the  jury,  and  no  exception  was  taken  to  the  charge  on  that 
subject.  The  defendants'  counsel  requested  the  court  to  charge,  that 
if  the  child  had  not  sufficient  discretion  to  see  the  danger  from  the 
hot  water  by  reason  of  its  tender  age,  then  it  was  negligence  on  the 
part  of  the  parents  to  allow  the  child  to  be  at  this  place  unattended 
by  a  sufficient  attendant  to  protect  it  from  danger.  The  plaintiff  was 
about  four  years  of  age,  and  according  to  the  authorities,  must  be 
regarded  as  non  sui  juris.  Hartfield  v.  Roper,  21  Wend.  615,  34  Am. 
Dec.  273;  Mangam  v.  Brooklyn  R.  Co.,  38  N.  Y.  455,  461,  98  Am. 
Dec.  66;  Ihl  v.  Forty-second  St.  R.  Co.,  47  N.  Y.  317,  7  Am.  Rep.  450. 
The  request  was  properly  overruled.  It  does  not  claim  that  it  was 
negligence  per  se  to  allow  a  child  four  years  old  to  be  on  the  side- 
walk, and  if  it  did,  such  a  claim  could  not  be  maintained  as  matter 
of  law;  but  it  seeks  to  predicate  negligence  of  the  parents  on  the  in- 
ability of  the  child  to  discover  the  danger  from  the  hot  water.  If 
the  latter  was  caused  by  the  negligence  of  the  defendants,  as  the  jury 
have  found,  it  constituted  an  obstruction  to  free  passage  upon  the 
sidewalk,  which  the  parents  were  not  required  to  anticipate  or  guard 


584  LAW  OF   TOUTS. 

* 

against.  If  the  child  was  in  a  lawful  place,  the  parents  were  not 
negligent  in  omitting  to  protect  it  against  the  wrongful  act  of  the 
defendants.  But  the  negligence  of  the  parents  in  this  case  was  not  a 
question.  The  case  was  submitted  to  the  jury  upon  the  negligence 
of  the  child,  and  the  jury  were  instructed  that  if  the  latter  was  negli- 
gent in  getting  into  the  water,  he  could  not  recover.  If  a  child, 
though  non  sui  juris,  has  not  committed  or  omitted  an  act  which  would 
constitute  contributory  negligence  in  a  person  of  years  of  discretion, 
an  injury  by  the  negligence  of  another  cannot  be  defended  upon  the 
alleged  negligence  of  the  parents.  47  N.  Y.  317,  7  Am.  Rep.  450, 
supra.  The  child  being  in  a  lawful  place,  and  exercising  what  would 
be  regarded  as  ordinary  care  in  an  adult,  is  entitled  to  recover  for  an 
injury  occasioned  by  the  wrongful  act  of  another,  irrespective  of  the 
conduct  of  the  parents.  It  is  in  cases  where  the  child  has  done  or 
omitted  something  which  would  be  regarded  in  an  adult  as  negligent, 
that  the  conduct  of  the  parents,  in  respect  to  the  degree  of  care  ex- 
ercised over  the  child,  becomes  material,  and  the  reason  is  that  neg- 
ligence cannot  be  imputed  to  the  child  except  through  the  parents; 
but  when  the  child  has  done  no  negligent  act,  the  conduct  of  the 
parents  may  be  regarded  as  too  remote.  Hartfield  v.  Roper,  21 
Wend.  615,  34  Am.  Dec.  273,  was  an  instance  where  the  negligence 
of  the  parents  was  material,  because  the  child  was  injured  while  sit- 
ting in  the  traveled  track  of  a  public  highway.  Here,  as  we  have 
seen,  the  child  was  in  a  lawful  place,  and  the  question  of  its  negli- 
gence was  deemed  necessary  by  the  court  to  its  recovery.  If  an  act 
could  have  been  imputed  to  the  child,  which  in  an  older  person  might 
have  constituted  negligence,  a  recovery  could  still  have  been  had  if 
the  parents  had  been  free  from  negligence,  but  the  latter  alternative 
was  not  reached  and  not  considered,  which  was  a  benefit  rather  than 
an  injury  to  the  defendants. 

The  judgment  must  be  affirmed,  with  costs.     All  concur. 

Judgment  affirmed. 

(This  qualification  of  the  Hartfield  v.  Roper  rule  Is  also  sustained  by  Kunz 
v.  City  of  Troy,  104  N.  Y.  344,  351,  10  N.  E.  442,  58  Am.  Rep.  508 ;  O'Brien 
v.  McGlinchy,  68  Me.  552 ;  Lynch  v.  Smith,  104  Mass.  52,  6  Am.  Rep.  188.) 


NEGLIGENCES.  585 


—   B.    The  rule  that  a  parent's  negligence  will  not  be  imputed  to  his 
child. 

(52  N.  J.  Law,  446,  19  Atl.  1102,  8  L.  R.  A.  842.) 

NEWMAN  v.  PHILLIPSBURG  HORSE-CAR  R.  CO. 

(Supreme  Court  of  New  Jersey.    June  5,  1890.) 

1.  NEGLIGENCE— INJURIES  TO  CHILD — IMPUTED  NEGLIGENCE. 

An  infant  of  tender  years  is  not  to  be  charged  with  the  negligence  of 
its  parent  or  the  person  having  it  In  charge. 

2.  SAME— STREET  RAILROADS. 

The  plaintiff,  about  two  years  of  age,  being  under  the  care  of  her  adult 
sister,  wandered  onto  the  track  of  a  horse  railroad,  and  was  there  run 
over  by  the  carelessness  of  the  driver  of  a  car.  Held,  that  plaintiff's 
right  of  action  against  the  horse-car  company  was  not  lost,  even  if  the 
sister's  carelessness  of  supervision  was,  in  part,  the  cause  of  her  injury. 

Case  Certified  from  Circuit  Court,  Warren  County. 

The  plaintiff  was  a  child  2  years  of  age.  She  was  in  the  custody  of 
her  sister,  who  was  22.  The  former,  being  left  by  herself  for  a  few 
minutes,  got  upon  the  railroad  track  of  the  defendant,  and  was  hurt 
by  the  car.  The  occurrence  took  place  in  a  public  street  of  the  village 
of  Phillipsburgh.  The  carelessness  of  the  defendant  was  manifest,  as 
at  the  time  of  the  accident  there  was  no  one  in  charge  of  the  horse 
drawing  the  car,  the  driver  being  in  the  car  collecting  fares.  The 
circuit  judge  submitted  the  three  following  propositions  to  this  court 
for  its  advisory  opinion,  viz. :  "First,  whether  the  negligence  of  the 
persons  in  charge  of  the  plaintiff,  an  infant  minor,  should  be  imputed 
to  the  said  plaintiff;  second,  whether  the  conduct  of  the  persons  in 
charge  of  the  plaintiff  at  the  time  of  the  injury  complained  of  was 
not  so  demonstrably  negligent  that  the  said  circuit  court  should  have 
nonsuited  the  plaintiff,  or  that  the  court  should  have  directed  the  jury 
to  find  for  the  defendant ;  third,  whether  a  new  trial  ought  not  to 
be  granted  on  the  ground  that  the  damages  awarded  are  excessive." 

Argued  November  term,  1889. 

BEASLEY,  C.  J.  There  is  but  a  single  question  presented  by  this  case, 
and  that  question  plainly  stands  among  the  vexed  questions  of  the  law. 
The  problem  is  whether  an  infant  of  tender  years  can  be  vicariously  neg- 
ligent, so  as  to  deprive  itself  of  a  remedy  that  it  would  otherwise  be  enti- 
tled to.  In  some  of  the  American  states  this  question  has  been  answered 
by  the  courts  in  the  affirmative,  and  in  others  in  the  negative.  To  the 
former  of  these  classes  belongs  the  decision  in  Hartfield  v.  Roper,  re- 
ported in  21  Wend.  615,  34  Am.  Dec.  273.  This  case  appears  to  have 
been  one  of  first  impression  on  this  subject ;  and  it  is  to  be  regarded 
not  only  as  the  precursor,  but  as  the  parent,  of  all  the  cases  of  the 
same  strain  that  have  since  appeared.  The  inquiry  with  respect  to 


586  LAW  OF  TORTS. 

t 

the  effect  of  the  negligence  of  the  custodian  of  the  infant,  too  young  to 
be  intelligent  of  situations  and  circumstances,  was  directly  presented 
for  decision  in  the  primary  case  thus  referred  to ;  for  the  facts  were 
these,  viz. :  The  plaintiff,  a  child  of  about  two  years  of  age,  was 
standing  or  sitting  in  the  snow  in  a  public  road,  and  in  that  situation 
was  run  over  by  a  sleigh  driven  by  the  defendants.  The  opinion  of 
the  court  was  that,  as  the  child  was  permitted  by  its  custodian  to  wan- 
der into  a  position  of  such  danger,  it  was  without  remedy  for  the 
hurts  thus  received,  unless  they  were  voluntarily  inflicted,  or  were 
the  product  of  gross  carelessness  on  the  part  of  the  defendants.  It 
is  obvious  that  the  judicial  theory  was  that  the  infant  was,  through 
the  medium  of  its  custodian,  the  doer,  in  part,  of  its  own  misfortune, 
and  that  consequently,  by  force  of  the  well-known  rule  under  such 
conditions,  he  had  no  right  to  an  action.  This,  of  course,  was  visiting 
the  child  for  the  neglect  of  the  custodian ;  and  such  infliction  is  jus- 
tified in  the  case  cited  in  this  wise :  "The  infant,"  says  the  court,  "is 
not  sui  juris.  He  belongs  to  another,  to  whom  discretion  in  the 
care  of  his  person  is  exclusively  confided.  That  person  is  keeper  and 
agent  for  this  purpose ;  in  respect  to  third  persons,  his  act  must  be 
deemed  that  of  the  infant ;  his  neglect,  the  infant's  neglect."  It  will 
be  observed  that  the  entire  content  of  this  quotation  is  the  statement  of 
a  single  fact,  and  a  deduction  from  it;  the  premise  being  that  the 
child  must  be  in  the  care  and  charge  of  an  adult,  and  the  inference 
being  that  for  that  reason  the  neglects  of  the  adult  are  the  neglects  of 
the  infant.  But  surely  this  is  conspicuously  a  non  sequitur.  How 
does  the  custody  of  the  infant  justify  or  lead  to  the  imputation  of  an- 
other's fault  to  him  ?  The  law,  natural  and  civil,  puts  the  infant  under 
the  care  of  the  adult;  but  how  can  this  right  to  care  for  and  protect 
be  construed  into  a  right  to  waive  or  forfeit  any  of  the  legal  rights 
of  the  infant  ?  The  capacity  to  make  such  waiver  or  forfeiture  is  not 
a  necessary  or  even  convenient  incident  of  this  office  of  the  adult, 
but  on  the  contrary  is  quite  inconsistent  with  it ;  for  the  power  to  pro- 
tect is  the  opposite  of  the  power  to  harm,  either  by  act  or  omission. 
In  this  case,  in  21  Wend.  615,  34  Am.  Dec.  273,  it  is  evident  that  the 
rule  of  law  enunciated  by  it  is  founded  in  the  theory  that  the  custodian 
of  the  infant  is  the  agent  of  the  infant.  But  this  is  a  mere  assumption, 
without  legal  basis ;  for  such  custodian  is  the  agent,  not  of  the  in- 
fant, but  of  the  law.  If  such  supposed  agency  existed,  it  would  em- 
brace many  interests  of  the  infant,  and  could  not  be  confined  to  the 
single  instance  where  an  injury  is  inflicted  by  the  co-operative  tort 
of  the  guardian.  And  yet  it  seems  certain  that  such  custodian  can- 
not surrender  or  impair  a  single  right  of  any  kind  that  is  vested  in 
the  child,  nor  impose  any  legal  burden  upon  it.  If  a  mother,  trav- 
eling with  her  child  in  her  arms,  should  agree  with  a  railway  com- 
pany that,  in  case  of  an  accident  to  such  infant  by  reason  of  the  joint 
negligence  of  herself  and  the  company,  the  latter  should  not  be  lia- 


NEGLIGENCE.  587 

ble  to  a  suit  by  the  child,  such  an  engagement  would  be  plainly  in- 
valid on  two  grounds :  First,  the  contract  would  be  contra  bonos 
mores;  and,  second,  because  the  mother  was  not  the  agent  of  the 
child,  authorized  to  enter  into  the  agreement.  Nevertheless  the  po- 
sition has  been  deemed  defensible,  that  the  same  evil  consequences 
to  the  infant  will  follow  from  the  negligence  of  the  mother,  in  the 
absence  of  such  supposed  contract,  as  would  have  resulted  if  such 
contract  should  have  been  made,  and  should  have  been  held  valid. 

In  fact,  this  doctrine  of  the  imputability  of  the  misfeasance  of  the 
keeper  of  a  child  to  the  child  itself  is  deemed  to  be  a  pure  interpolation 
into  the  law ;  for,  until  the  case  under  criticism,  it  was  absolutely  un- 
known, nor  is  it  sustained  by  legal  analogies.  Infants  have  always 
been  the  particular  objects  of  the  favor  and  protection  of  the  law.  In 
the  language  of  an  ancient  authority,  this  doctrine  is  thus  expressed : 
"The  common  principle  is  that  an  infant,  in  all  things  which  sound 
in  his  benefit,  shall  have  favor  and  preferment  in  law  as  well  as  an- 
other man,  but  shall  not  be  prejudiced  by  anything  to  his  disadvan- 
tage." 9  Vin.  Abr.  374.  And  it  would  appear  to  be  plain  that  nothing 
could  be  more  to  the  prejudice  of  an  infant  than  to  convert,  by  con- 
struction of  law,  the  connection  between  himself  and  his  custodian 
into  an  agency  to  which  the  harsh  rule  of  respondeat  superior  should 
be  applicable.  The  answerableness  of  the  principal  for  the  authorized 
acts  of  his  agent  is  not  so  much  the  dictate  of  natural  justice  as  of 
public  policy,  and  has  arisen,  with  some  propriety,  from  the  circum- 
stances that  the  creation  of  the  agency  is  a  voluntary  act,  and  that  it 
can  be  controlled  and  ended  at  the  will  of  its  creator.  But  in  the 
relationship  between  the  infant  and  its  keeper  all  these  decisive  charac- 
teristics are  wholly  wanting.  The  law  imposes  the  keeper  upon  the 
child,  who  of  course  can  neither  control  nor  remove  him ;  and  the  in- 
justice, therefore,  of  making  the  latter  responsible  in  any  measure 
whatever  for  the  torts  of  the  former,  would  seem  to  be  quite  evident. 
Such  subjectivity  would  be  hostile  in  every  respect  to  the  natural 
rights  of  the  infant,  and  consequently  cannot  with  any  show  of  reason 
be  introduced  into  that  provision  which  both  necessity  and  law  estab- 
lish for  his  protection.  Nor  can  it  be  said  that  its  existence  is  neces- 
sary to  give  just  enforcement  to  the  rights  of  others.  When  it  hap- 
pens that  both  the  infant  and  its  custodian  have  been  injured  by  the 
co-operative  negligence  of  such  custodian  and  a  third  party,  it  seems 
reasonable,  at  least  in  some  degree,  that  the  latter  should  be  enabled 
to  say  to  the  custodian:  "You  and  I,  by  our  common  carelessness, 
have  done  this  wrong,  and  therefore  neither  can  look  to  the  other 
for  redress."  But  when  such  wrong-doer  says  to  the  infant:  "Your 
guardian  and  I,  by  our  joint  misconduct,  have  brought  this  loss  upon 
you;  consequently,  you  have  no  right  of  action  against  me,  but  you 
must  look  for  indemnification  to  your  guardian  alone," — a  proposition 
is  stated  that  appears  to  be  without  any  basis  either  in  good  sense 


588  LAW  OF  TORTS. 

• 

or  law.  The  conversion  of  the  infant,  who  is  entirely  free  from  fault, 
into  a  wrong-doer,  by  imputation,  is  a  logical  contrivance  uncongenial 
with  the  spirit  of  jurisprudence.  The  sensible  and  legal  doctrine  is 
this :  An  infant  of  tender  years  cannot  be  charged  with  negligence, 
nor  can  he  be  so  charged  with  the  commission  of  such  fault  by  sub- 
stitution, for  he  is  incapable  of  appointing  an  agent;  the  consequence 
being  that  he  can  in  no  case  be  considered  to  be  the  blamable  cause, 
either  in  whole  or  in  part,  of  his  own  injury.  There  is  no  injustice 
nor  hardship  in  requiring  all  wrong-doers  to  be  answerable  to  a  per- 
son who  is  incapable  either  of  self-protection,  or  of  being  a  partici- 
pator in  their  misfeasance.  Nor  is  it  to  be  overlooked  that  the  theory 
here  repudiated,  if  it  should  be  adopted,  would  go  the  length  of  mak- 
ing an  infant  in  its  nurse's  arms  answerable  for  all  the  negligences 
of  such  nurse  while  thus  employed  in  its  service.  Every  person  so 
damaged  by  the  careless  custodian  would  be  entitled  to  his  action 
against  the  infant.  If  the  neglects  of  the  guardian  are  to  be  regarded 
as  the  neglects  of  the  infant,  as  was  asserted  in  the  New  York  de- 
cisions, it  would,  from  logical  necessity,  follow  that  the  infant  must 
indemnify  those  who  should  be  harmed  by  such  neglects.  That  such 
a  doctrine  has  never  prevailed  is  conclusively  shown  by  the  fact  that 
in  the  reports  there  is  no  indication  that  such  a  suit  has  ever  been 
brought. 

It  has  already  been  observed  that  judicial  opinions  touching  the  sub- 
ject just  discussed  are  in  a  state  of  direct  antagonism,  and  it  would 
therefore  serve  no  useful  purpose  to  refer  to  any  of  them.  It  is  suffi- 
cient to  say  that  the  leading  text-writers  have  concluded  that  the 
weight  of  such  authority  is  adverse  to  the  doctrine  that  an  infant  can 
become  in  any  wise  a  tort-feasor  by  imputation.  1  Shear.  &  R.  Neg. 
§  75;  Whart.  Neg.  §  311 ;  2  Wood,  Ry.  Law,  1284.  In  our  opinion, 
the  weight  of  reason  is  in  the  same  scale. 

It  remains  to  add  that  we  do  not  think  the  damages  so  excessive 
as  to  place  the  verdict  under  judicial  control. 

Let  the  circuit  court  be  advised  to  render  judgment  on  the  finding 
of  the  jury. 

(This  rule  Is  adopted  In  a  majority  of  the  states:  Warren  v.  Manchester 
St.  Ry.,  70  N.  H.  352,  47  Atl.  735  [citing  many  cases] ;  Robinson  v.  Cone,  22 
Vt.  214,  54  Am.  Dec.  67;  Murphy  v.  Derby  St.  R.  Co.,  73  Conn.  249,  47  Atl. 
120;  Fink  v.  Des  Moines,  115  Iowa,  641,  89  N.  W.  28;  Chicago  City  R.  Co. 
v.  Wilcox,  138  111.  370,  27  N.  B.  899,  21  L.  R.  A.  76  [a  valuable  case] ;  Chicago 
City  R.  Co.  v.  Tuohy,  196  111.  410,  63  N.  E.  997,  58  L.  R.  A.  270;  Markey  v. 
Consolidated  Traction  Co.,  65  N.  J.  Law,  82,  46  Atl.  573;  City  of  Evansville 
v.  Senhenn,  151  Ind.  42,  47  N.  E.  634,  51  N.  E.  88,  41  L.  R.  A.  728,  68  Am.  St. 
Rep.  218 ;  Huff  v.  Ames,  16  Neb.  139,  19  N.  W.  623,  49  Am.  Rep.  716 ;  Bottoms 
v.  Railroad,  114  N.  C.  699,  19  S.  E.  730;  Dicken  v.  Liverpool  Salt  Co.,  41  W. 
Va.  511,  23  S.  E.  582 ;  City  of  Roanoke  v.  Shull,  97  Va.  419,  34  S.  E.  34,  75 
Am.  St.  Rep.  791 ;  Erie  City  Pass.  Co.  v.  Schuster,  113  Pa.  412,  6  Atl.  269,  57 
Am.  Rep.  471;  Bellefontaine  &  I.  R.  Co.  v.  Snyder,  18  Ohio  St.  408,  98  Am. 
Dec.  175 ;  Winters  v.  Railroad  Co.,  99  Mo.  509,  12  S.  W.  652,  6  L.  R.  A.  536, 


NEGLIGENCE.  580 

17  Am.  St.  Rep.  591 ;  Shippy  v.  Village  of  Au  Sable,  85  Mich.  280,  48  N.  W. 
584.  But  when  the  parent  himself  sues,  on  the  ground  of  loss  of  service,  his 
negligence,  contributing  to t the  child's  injury,  may  be  shown.  Chicago  &  A. 
R.  Co.  v.  Logue,  158  111.  621,  42  N.  B.  53 ;  Bellefontaine  R.  Co.  v.  Snyder,  24 
Ohio  St.  670.) 


5.  Imputation  of  negligence  to  passenger — Former  English 
doctrine  now  overruled. 

(116  U.  S.  366,  6  Sup.  Ct.  391,  29  L.  Ed.  652.) 

LITTLE  v.  HACKETT  (in  part). 
(Supreme  Court  of  the  United  States.     January  4,  1886.) 

NEGLIGENCE  OF  CARRIER  NOT  IMPUTABLE  TO  PASSENGER. 

A  person  who  hires  a  public  hack,  and  gives  ,the  driver  directions  as  to 
the  place  to  which  he  wishes  to  be  conveyed,  but  exercises  no  other  con- 
trol over  the  conduct  of  the  driver,  is  not  responsible  for  his  acts  or  neg- 
ligence, or  prevented  from  recovering  against  a  railroad  company  for 
injuries  suffered  from  a  collision  of  its  train  with  the  hack,  caused  by 
the  concurring  negligence  of  the  managers  of  the  train  and  of  the  driver. 
In  other  words,  the  negligence  of  the  driver  is  not  imputed  to  his  pas- 
senger. 

In  Error  to  the  Circuit  Court  of  the  United  States  for  the  District  of 
New  Jersey. 

Plaintiff  hired  a  public  hackney  coach,  and  directed  the  driver  as  to 
the  place  to  which  he  desired  to  go.  While  the  driver  was  following 
out  such  directions  the  carriage  was  struck  by  an  engine  of  a  passing 
train,  and  plaintiff  was  injured.  The  accident  was  the  result  of  the 
concurring  negligence  of  the  managers  of  the  train  and  the  driver  of  the 
carriage.  The  trial  court  charged  "that  where  a  person  hires  a  public 
hack  or  carriage,  which  at  the  time  is  in  the  care  of  a  driver,  for  the  pur- 
pose of  temporary  conveyance,  and  gives  directions  to  the  driver  as  to 
the  place  or  places  to  which  he  desires  to  be  conveyed,  and  gives  no  spe- 
cial directions  as  to  his  mode  or  manner  of  driving,  he  is  not  responsible 
for  the  acts  or  negligence  of  the  driver."  Plaintiff  recovered  judgment, 
and  this  instruction  is  alleged  as  error.  Judgment  affirmed. 

FIELD,  J.  That  one  cannot  recover  damages  for  an  injury  to  the 
commission  of  which  he  has  directly  contributed,  is  a  rule  of  established 
law  and  a  principle  of  common  justice.  And  it  matters  not  whether  that 
contribution  consists  in  his  participation  in  the  direct  cause  of  the  in- 
jury, or  in  his  omission  of  duties  which,  if  performed,  would  have  pre- 
vented it.  If  his  fault,  whether  of  omission  or  commission,  has  been  the 
proximate  cause  of  the  injury,  he  is  without  remedy  against  one  also  in 
the  wrong.  It  would  seem  that  the  converse  of  this  doctrine  should  be 
accepted  as  sound, — that  when  one  has  been  injured  by  the  wrongful 


590  LAW  OF  TORTS. 

» 

act  of  another,  to  which  he  has  in  no  respect  contributed,  he  should  be 
entitled  to  compensation  in  damages  from  the  wrong-doer.  And  such 
is  the  generally  received  doctrine,  unless  a  contributory  cause  of  the 
injury  has  been  the  negligence  or  fault  of  some  person  towards  whom  he 
sustains  the  relation  of  superior  or  master,  in  which  case  the  negligence 
is  imputed  to  him,  though  he  may  not  have  personally  participated  in 
or  had  knowledge  of  it ;  and  he  must  bear  the  consequences.  The  doc- 
trine may  also  be  subject  to  other  exceptions  growing  out  of  the  relation 
of  parent  and  child  or  guardian  and  ward,  and  the  like.  Such  a  rela- 
tion involves  considerations  which  have  no  bearing  upon  the  question 
before  us. 

To  determine,  therefore,  the  correctness  of  the  instruction  of  the 
court  below — to  the  effect  that  if  the  plaintiff  did  not  .exercise  control 
over  the  conduct  of  the  driver  at  the  time  of  the  accident,  he  is  not  re- 
sponsible for  the  driver's  negligence,  nor  precluded  thereby  from  re- 
covering in  the  action — we  have  only  to  consider  whether  the  relation 
of  master  and  servant  existed  between  them.  Plainly,  that  relation 
did  not  exist.  The  driver  was  the  servant  of  his  employer,  the  livery- 
stable  keeper,  who  hired  out  him,  with  horse  and  carriage,  and  was 
responsible  for  his  acts.  Upon  this  point  we  have  a  decision  of  the 
court  of  exchequer  in  Ouarman  v.  Burnett,  6  Mees.  &  W.  499.  In  that 
case  it  appeared  that  the  owners  of  a  chariot  were  in  the  habit  of  hiring, 
for  a  day  or  a  drive,  horses  and  a  coachman  from  a  job-mistress,  for 
which  she  charged  and  received  a  certain  sum.  She  paid  the  driver  by 
the  week,  and  the  owners  of  the  chariot  gave  him  a  gratuity  for  each 
day's  service.  On  one  occasion  he  left  the  horses  unattended,  and  they 
ran  off,  and  against  the  chaise  of  the  plaintiff,  seriously  injuring  him 
and  the  chaise,  and  he  brought  an  action  against  the  owners  of  the 
chariot,  and  obtained  a  verdict ;  but  it  was  set  aside  on  the  ground  that 
the  coachman  was  the  servant  of  the  job-mistress,  who  was  responsible 
for  his  negligence.  In  giving  the  opinion  of  the  court,  Baron  Parke 
said :  "It  is  undoubtedly  true  that  there  may  be  special  circumstances 
which  may  render  the  hirer  of  job  horses  and  servants  responsible  for 
the  negligence  of  the  servant,  though  not  liable  by  virtue  of  the  general 
relation  of  master  and  servant.  He  may  become  so  by  his  own  conduct ; 
as  by  taking  the  actual  management  of  the  horses,  or  ordering  the  serv- 
ant to  drive  in  a  particular  manner,  which  occasions  the  damage  com- 
plained of,  or  to  absent  himself  at  any  particular  moment,  and  the  like." 
As  none  of  these  circumstances  existed,  it  was  held  that  the  defendants 
were  not  liable,  because  the  relation  of  master  and  servant  between  them 
and  the  driver  did  not  exist.  This  doctrine  was  approved  and  applied 
by  the  queen's  bench  division,  in  the  recent  case  of  Jones  v.  Corporation 
of  Liverpool,  14  Q.  B.  Div.  890.  The  corporation  owned  a  water-cart, 
and  contracted  with  a  Mrs.  Dean  for  a  horse  and  driver,  that  it  might  be 
used  in  watering  the  streets.  The  horse  belonged  to  her,  and  the  driver 
she  employed  was  not  under  the  control  of  the  corporation  otherwise 


NEGLIGENCE.  591 

than  its  inspector  directed  him  what  streets  or  portions  of  streets  to 
water.  Such  directions  he  was  required  to  obey  under  the  contract  with 
Mrs.  Dean  for  his  employment.  The  carriage  of  the  plaintiff  was  in- 
jured by  the  negligent  driving  of  the  cart,  and,  in  an  action  against 
the  corporation  for  the  injury,  he  recovered  a  verdict,  which  was  set 
aside  upon  the  ground  that  the  driver  was  the  servant  of  Mrs.  Dean, 
who  had  hired  both  him  and  the  horse  to  the  corporation.  In  this  coun- 
try there  are  many  decisions  of  courts  of  the  highest  character  to  the 
same  effect,  to  some  of  which  we  shall  presently  refer. 

The  doctrine,  resting  upon  the  principle  that  no  one  is  to  be  denied  a 
remedy  for  injuries  sustained,  without  fault  by  him,  or  by  a  party  under 
his  control  and  direction,  is  qualified  by  cases  in  the  English  courts, 
wherein  it  is  held  that  a  party  who  trusts  himself  to  a  public  conveyance 
is  in  some  way  identified  with  those  who  have  it  in  charge,  and  that  he 
can  only  recover  against  a  wrong-doer  when  they  who  are  in  charge  can 
recover;  in  other  words,  that  their  contributory  negligence  is  im- 
putable  to  him,  so  as  to  preclude  his  recovery  for  an  injury  when  they, 
by  reason  of  such  negligence,  could  not  recover.  The  leading  case  to 
this  effect  is  Thorogood  v.  Bryan,  decided  by  the  court  of  common  pleas 
in  1849.  8  C.  B.  115.  It  there  appeared  that  the  husband  of  the  plain- 
tiff, whose  administratrix  she  was,  was  a  passenger  in  an  omnibus. 
The  defendant,  Mrs.  Bryan,  was  the  proprietress  of  another  omnibus, 
running  on  the  same  line  of  road.  Both  vehicles  had  started  together, 
and  frequently  passed  each  other,  as  either  stopped  to  take  up  or  set 
down  a  passenger.  The  deceased,  wishing  to  alight,  did  not  wait  for 
the  omnibus  to  draw  up  to  the  curb,  but  got  out  while  it  was  in  motion, 
and  far  enough  from  the  path  to  allow  another  carriage  to  pass  on  the 
near  side.  The  defendant's  omnibus  coming  up  at  the  moment,  he  was 
run  over,  and  in  a  few  days  afterwards  died  from  the  injuries  sus- 
tained. The  court,  among  other  things,  instructed  the  jury  that  if  they 
were  of  the  opinion  that  want  of  care  on  the  part  of  the  driver  of  the 
omnibus  in  which  the  deceased  was  a  passenger,  in  not  drawing  up  to 
the  curb  to  put  him  down,  had  been  conducive  to  the  injury,  the  verdict 
must  be  for  the  defendant,  although  her  driver  was  also  guilty  of  negli- 
gence^ The  jury  found  for  the  defendant,  and  the  court  discharged  a 
rule  for  a  new  trial,  for  misdirection,  thus  sustaining  the  instruction. 
The  grounds  of  its  decision  were,  as  stated  by  Mr.  Justice  Coltman,  that 
the  deceased,  having  trusted  the  party  by  selecting  the  particular  con- 
veyance in  which  he  was  carried,  had  so  far  identified  himself  with  the 
owner  and  her  servants  that  if  an  injury  resulted  from  their  negligence, 
he  must  be  considered  a  party  to  it ;  "in  other  words,"  to  quote  his  lan- 
guage, "the  passenger  is  so  far  identified  with  the  carriage  in  which  he 
is  traveling,  that  want  of  care  on  the  part  of  the  driver  will  be  a  de- 
fense of  the  driver  of  the  carriage  which  directly  caused  the  injury." 
Mr.  Justice  Maule,  in  the  same  case,  said  that  the  passenger  "chose  his 
own  conveyance,  and  must  take  the  consequences  of  any  default  of  the 


592  LAW  OF  TORTS. 

* 

driver  he  thought  fit  to  trust."  Mr.  Justice  Cresswell  said:  "If  the 
driver  of  the  omnibus  the  deceased  was  in  had,  by  his  negligence  or 
want  of  due  care  and  skill,  contributed  to  any  injury  from  a  collision, 
his  master  clearly  could  maintain  no  action,  and  I  must  confess,  I  see 
no  reason  why  a  passenger,  who  employs  the  driver  to  carry  him,  stands 
in  any  different  position."  Mr.  Justice  Williams  added  that  he  was  of 
the  same  opinion.  He  said:  "I  think  the  passenger  must,  for  this 
purpose,  be  considered  as  identified  with  the  person  having  the  man- 
agement of  the  omnibus  he  was  conveyed  in." 

What  is  meant  by  the  passenger  being  "identified  with  the  carriage," 
or  "with  the  person  having  its  management,"  is  not  very  clear.  In  a 
recent  case,  in  which  the  court  of  exchequer  applied  the  same  test  to  a 
passenger  in  a  railway  train  which  collided  with  a  number  of 'loaded 
wagons  that  were  being  shunted  from  a  siding  by  the  defendant,  an- 
other railway  company,  Baron  Pollock  said  that  he  understood  it  to 
mean  "that  the  plaintiff,  for  the  purpose  of  the  action,  must  be  taken 
to  be  in  the  same  position  as  the  owner  of  the  omnibus  or  his  driver." 
Armstrong  v.  Lancashire  &  Y.  Ry.  Co.,  L.  R.  10  Exch.  47,  52.  Assum- 
ing this  to  be  the  correct  explanation,  it  is  difficult  to  see  upon  what 
principle  the  passenger  can  be  considered  to  be  in  the  same  position, 
with  reference  to  the  negligent  act,  as  the  driver  who  committed  it,  or 
as  his  master,  the  owner.  Cases  cited  from  the  English  courts,  as  we 
have  seen,  and  numerous  others  decided  in  the  courts  of  this  country, 
show  that  the  relation  of  master  and  servant  does  not  exist  between  the 
passenger  and  the  driver,  or  between  the  passenger  and  the  owner.  In 
the  absence  of  this  relation,  the  imputation  of  their  negligence  to  the 
passenger,  where  no  fault  of  omission  or  commission  is  chargeable  to 
him,  is  against  all  legal  rules.  If  their  negligence  could  be  imputed  to 
him,  it  would  render  him,  equally  with  them,  responsible  to  third  parties 
thereby  injured,  and  would  also  preclude  him  from  maintaining  an  ac- 
tion against  the  owner  for  injuries  received  by  reason  of  it.  But  neith- 
er of  these  conclusions  can  be  maintained.  Neither  has  the  support  of 
any  adjudged  cases  entitled  to  consideration. 

The  truth  is  the  decision  in  Thorogood  v.  Bryan  rests  upon  indefensi- 
ble ground.  The  identification  of  the  passenger  with  the  negligent 
driver  or  the  owner,  without  his  personal  co-operation  or  encourage- 
ment, is  a  gratuitous  assumption.  There  is  no  such  identity.  The 
parties  are  not  in  the  same  position.  The  owner  of  a  public  conveyance 
is  a  carrier,  and  the  driver  or  the  person  managing  it  is  his  servant. 
Neither  of  them  is  the  servant  of  the  passenger,  and  his  asserted  identity 
with  them  is  contradicted  by  the  daily  experience  of  the  world.  Thoro- 
good v.  Bryan  has  not  escaped  criticism  in  the  English  courts.  In  the 
court  of  admiralty  it  has  been  openly  disregarded.  In  The  Milan,  Dr. 
Lushington,  the  judge  of  the  high  court  of  admiralty,  in  speaking  of 
that  case,  said:  "With  due  respect  to  the  judges  who  decided  that 
c-ase,  I  do  not  consider  that  it  is  necessary  for  me  to  dissect  the  judg- 


NEGLIGENCE.  59:1. 

mcnt,  but  I  decline  to  be  bound  by  it,  because  it  is  a  single  case ;  because 
I  know,  upon  inquiry,  that  it  has  been  doubted  by  high  authority ;  be- 
cause it  appears  to  me  not  reconcilable  with  other  principles  laid  down  at 
common  law ;  and,  lastly,  because  it  is  directly  against  Hay  v.  La  Neve, 
[2  Shaw,  395,]  and  the  ordinary  practice  of  the  court  of  admiralty." 
Lush.  388,  403. 

In  this  country  the  doctrine  of  Thorogood  v.  Bryan  has  not  been 
generally  followed.  In  Bennet  v.  New  Jersey  R.  &  T.  Co.,  36  N.  J. 
Law,  225,  13  Am.  Rep.  435,  and  New  York,  L.  E.  &  W.  R.  Co.  v.  Stein- 
brenner,  47  N.  J.  Law,  161,  54  Am.  Rep.  126,  it  was  elaborately  exam- 
ined by  the  supreme  court  and  the  court  of  errors  of  New  Jersey,  in 
opinions  of  marked  ability  and  learning,  and  was  disapproved  and  re- 
jected. In  the  first  case  it  was  held  that  the  driver  of  a  horse  car  was 
not  the  agent  of  the  passenger  so  as  to  render  the  passenger  chargeable 
for  the  driver's  negligence.  The  car,  in  crossing  the  track  of  the  rail- 
road company,  was  struck  by  its  train,  and  the  passenger  was  injured, 
and  he  brought  an  action  against  the  company.  On  the  trial  the  de- 
fendant contended  that  there  was  evidence  tending  to  show  negligence 
by  the  driver  of  the  horse  car,  which  was  in  part  productive  of  the  acci- 
dent, and  the  presiding  judge  was  requested  to  charge  the  jury  that  if 
this  was  so,  the  plaintiff  was  not  entitled  to  recover ;  but  the  court  in- 
structed them  that  the  carelessness  of  the  driver  would  not  affect  the 
action,  or  bar  the  plaintiff's  right  to  recover  for  the  negligence  of  the 
defendant.  And  this  instruction  was  sustained  by  the  court.  In  speak- 
ing of  the  "identification"  of  the  passenger  in  the  omnibus  with  the 
driver,  mentioned  in  Thorogood  v.  Bryan,  the  court,  by  the  chief  justice, 
said:  "Such  identification  could  result  only  in  one  way;  that  is,  by 
considering  such  driver  the  servant  of  the  passenger.  I  can  see  no 
ground  upon  which  such  a  relationship  is  to  be  founded.  In  a  prac- 
tical point  of  view,  it  certainly  does  not  exist.  The  passenger  has  no 
control  over  the  driver  or  agent  in  charge  of  the  vehicle ;  and  it  is  this 
right  to  control  the  conduct  of  the  agent  which  is  the  foundation  of  the 
doctrine  that  the  master  is  to  be  affected  by  the  acts  of  his  servant. 
To  hold  that  the  conductor  of  a  street  car  or  of  a  railroad  train  is  the 
agent  of  the  numerous  passengers  who  may  chance  to  be  in  it,  would 
be  a  pure  fiction.  In  reality  there  is  no  such  agency;  and  if  we  im- 
pute it,  and  correctly  apply  legal  principles,  the  passenger,  on  the  oc- 
currence of  an  accident  from  the  carelessness  of  the  person  in  charge  of 
the  vehicle  in  which  he  is  being  conveyed,  would  be  without  any  remedy. 
It  is  obvious,  in  a  suit  against  the  proprietor  of  the  car  in  which  he  was 
the  passenger,  there  could  be  no  recovery  if  the  driver  or  conductor  of 
such  car  is  to  be  regarded  as  the  servant  of  the  passenger.  And  so,  on 
the  same  ground,  each  passenger  would  be  liable  to  every  person  in- 
jured by  the  carelessness  of  such  driver  or  conductor,  because,  if  the 
negligence  of  such  agent  is  to  be  attributed  to  the  passenger  for  one 
purpose,  it  would  be  entirely  arbitrary  to  say  that  he  is  not  to  be  af- 
CnASE(2o  ED.) — 38 


594  LAW   OF   TOUTS. 

fected  by  it  for'other  purposes.     36  N.  J.  Law,  227,  228,  13  Am.  Rep. 

435- 

In  the  latter  case  it  appeared  that  the  plaintiff  had  hired  a  coach  and 
horses,  with  a  driver,  to  take  his  family  on  a  particular  journey.  In  the 
course  of  the  journey,  while  crossing  the  track  of  the  railroad,  the  coach 
was  struck  by  a  passing  train,  and  the  plaintiff  was  injured.  In  an 
action  brought  by  him  against  the  railroad  company,  it  was  held  that 
the  relation  of  master  and  servant  did  not  exist  between  him  and  the 
driver,  and  that  the  negligence  of  the  latter,  co-operating  with  that 
of  persons  in  charge  of  the  train,  which  caused  the  accident,  was  not  im- 
putable  to  the  plaintiff,  as  contributory  negligence,  to  bar  his  action. 

In  New  York  a  similar  conclusion  has  been  reached.  In  Chapman 
v.  New  Haven  R.  Co.,  19  N.  Y.  341,  75  Am.  Dec.  344,  it  appeared  that 
there  was  a  collision  between  the  trains  of  two  railroad  companies, 
by  which  the  plaintiff,  a  passenger  in  one  of  them,  was  injured.  The 
court  of  appeals  of  that  state  held  that  a  passenger  by  railroad  was  not 
so  identified  with  the  proprietors  of  the  train  conveying  him,  or  with 
their  servants,  as  to  be  responsible  for  their  negligence,  and  that  he 
might  recover  against  the  proprietors  of  another  train  for  injuries  sus- 
tained from  a  collision  through  their  negligence,  although  there  was 
such  negligence  in  the  management  of  the  train  conveying  him  as  would 
have  defeated  an  action  by  its  owners.  In  giving  the  decision,  the  court 
referred  to  Thorogood  v.  Bryan,  and  said  that  it  could  see  no  justice 
in  the  doctrine  in  connection  with  that  case,  and  that  to  attribute  to  the 
passenger  the  negligence  of  the  agents  of  the  company,  and  thus  bar  his 
right  to  recover,  was  not  applying  any  existing  exception  to  the  general 
rule  of  law,  but  was  framing  a  new  exception  based  on  fiction  and  incon- 
sistent with  justice.  The  case  differed  from  Thorogood  v.  Bryan  in 
that  the  vehicle  carrying  the  plaintiff  was  a  railway  train  instead  of  an 
omnibus ;  but  the  doctrine  of  the  English  case,  if  sound,  is  as  applicable 
to  passengers  on  railway  trains  as  to  passengers  in  an  omnibus ;  and 
it  was  so  applied,  as  already  stated,  by  the  court  of  exchequer  in  the  re- 
cent case  of  Armstrong  v.  Lancashire  &  Y.  R.  Co. 

In  Dyer  v.  Erie  Ry.  Co.,  71  N.  Y.  228,  the  plaintiff  was  injured  while 
crossing  the  defendant's  railroad  track  on  a  public  thoroughfare.  He 
was  riding  in  a  wagon  by  the  permission  and  invitation  of  the  owner  of 
the  horses  and  wagon.  At  that  time  a  train  standing  south  of  certain 
buildings,  which  prevented  its  being  seen,  had  started  to  back  over 
the  crossing,  without  giving  the  driver  of  the  wagon  any  warning  of  its 
approach.  The  horses,  becoming  frightened  by  the  blowing  off  of 
steam  from  engines  in  the  vicinity,  became  unmanageable,  and  the 
plaintiff  was  thrown  or  jumped  from  the  wagon,  and  was  injured  by 
the  train  which  was  backing.  It  was  held  that  no  relation  of  principal 
and  agent  arose  between  the  driver  of  the  wagon  and  the  plaintiff,  and, 
although  he  traveled  voluntarily,  he  was  not  responsible  for  the  negli- 
gence of  the  driver,  where  he  himself  was  not  chargeable  with  negli- 


NEGLIGE>'CE.  595 

gence  and  there  was  no  claim  that  the  driver  was  not  competent  to  con- 
trol and  manage  the  horses. 

A  similar  doctrine  is  maintained  by  the  courts  of  Ohio.  In  Transfer 
Co.  v.  Kelly,  36  Ohio  St.  86,  38  Am.  Rep.  558,  the  plaintiff,  a  passenger 
on  a  car  owned  by  a  street  railroad  company,  was  injured  by  its  collision 
with  a  car  of  the  transfer  company.  The  chief  justice,  in  delivering  the 
opinion  of  the  court,  said :  "It  seems  to  us  that  the  negligence  of  the 
company,  or  of  its  servant,  should  not  be  imputed  to  the  passenger, 
where  such  negligence  contributed  to  his  injury  jointly  with  the  negli- 
gence of  a  third  party,  any  more  than  it  should  be  so  imputed  where 
the  negligence  of  the  company,  or  its  servant,  was  the  sole  cause  of  the 
injury."  In  the  supreme  court  of  Illinois  the  same  doctrine  is  main- 
tained. In  the  recent  case  of  the  Wabash,  St.  L.  &  P.  R.  Co.  v.  Shacklet, 
105  111.  364,  44  Am.  Rep.  791,  the  doctrine  of  Thorogood's  Case  was 
examined  and  rejected.  Similar  decisions  have  been  made  in  the  courts 
of  Kentucky,  Michigan,  and  California.  Danville,  etc.,  T.  Co.  v.  Stew- 
art, 2  Mete.  (Ky.)  119 ;  Louisville,  etc.,  R.  Co.  v.  Case,  9  Bush,  728 ; 
Cuddy  v.  Horn,  46  Mich.  596,  10  N.  W.  32,  41  Am.  Rep.  178 ;  Tomp- 
kins  v.  Clay  Street  R.  Co.,  66  Cal.  163,  4  Pac.  1165. 

There  is  no  distinction  in  principle  whether  the  passengers  be  on  a 
public  conveyance,  like  a  railroad  train  or  an  omnibus,  or  be  on  a  hack 
hired  from  a  public  stand,  in  the  street,  for  a  drive.  Those  on  a  hack 
do  not  become  responsible  for  the  negligence  of  the  driver  if  they  exer- 
cise no  control  over  him  further  than  to  indicate  the  route  they  wish 
to  travel  or  the  places  to  which  they  wish  to  go.  If  he  is  their  agent,  so 
that  his  negligence  can  be  imputed  to  them  to  prevent  their  recovery 
against  a  third  party,  he  must  be  their  agent  in  all  other  respects,  so 
far  as  the  management  of  the  carriage  is  concerned,  and  responsibility 
to  third  parties  would  attach  to  them  for  injuries  caused  by  his  negli- 
gence in  the  course  of  his  employment.  But,  as  we  have  already  stated, 
responsibility  cannot,  within  any  recognized  rules  of  law,  be  fastened 
upon  one  who  has  in  no  way  interfered  with  and  controlled  in  the  mat- 
ter causing  the  injury.  From  the  simple  fact  of  hiryig  the  carriage  or 
riding  in  it  no  such  liability  can  arise.  The  party  hiring  or  riding  must 
in  some  way  have  co-operated  in  producing  the  injury  complained  of 
before  he  incurs  any  liability  for  it.  "If  the  law  were  otherwise,"  as 
said  by  Mr.  Justice  Depue  in  his  elaborate  opinion  in  the  latest  case  in 
New  Jersey,  "not  only  the  hirer  of  the  coach,  but  also  all  the  passengers 
in  it,  would  be  under  a  constraint  to  mount  the  box,  and  superintend 
the  conduct  of  the  driver  in  the  management  and  control  of  his  team, 
or  be  put  for  remedy  exclusively  to  an  action  against  the  irresponsible 
driver  or  equally  irresponsible  owner  of  a  coach  taken,  it  may  be,  from 
a  coach-stand,  for  the  consequences  of  an  injury  which  was  the  product 
of  the  co-operating  wrongful  acts  of  the  driver  and  of  a  third  person, 
and  that,  too,  though  the  passengers  were  ignorant  of  the  character  of 
the  driver,  and  of  the  responsibility  of  the  owner  of  the  team,  and 


556  LAW  OF  TORTS. 

» 

strangers  to  the  route  over  which  they  were  to  be  carried."     47  N.  J. 
Law,  171,  54  Am.  Rep.  126. 

In  this  case  it  was  left  to  the  jury  to  say  whether  the  plaintiff  had 
exercised  any  control  over  the  conduct  of  the  driver  further  than  to  in- 
dicate the  places  to  which  he  wished  him  to  dri  e.  The  instruction  of 
the  court  below,  that  unless  he  did  exercise  such  control,  and  required 
the  driver  to  cross  the  track  at  the  time  the  collision  occurred,  the  negli- 
gence of  the  driver  was  not  imputable  to  him,  so  as  to  bar  his  right  of 
action  against  the  defendant,  was  therefore  correct,  and  the  judgment 
must  be  affirmed ;  and  it  is  so  ordered. 

(Since  this  decision  was  rendered,  the  case  of  Thorogood  v.  Bryan  has  been 
overruled  in  England.  Mills  v.  Armstrong,  L.  R.  13  App.  Cas.  1.  It  has  been 
rejected  well-nigh  universally  in  this  country.  State  v.  Boston  &  M.  R.  Co., 
80  Me.  430,  15  Atl.  36 ;  Noyes  v.  Boscawen,  64  N.  H.  361,  10  Atl.  690,  10  Am. 
St.  Rep.  410;  Murray  v.  Boston  Ice  Co.,  180  Mass.  165,  61  N.  E.  1001;  Dyer 
v.  Erie  R.  Co.,  71  N.  Y.  228;  Bunting  v.  Hogsett,  139  Pa.  363,  21  Atl.  31,  33, 
34,  12  L.  R.  A.  268,  23  Am.  St.  Rep.  192;  Noonan  v.  Consolidated  Traction 
Co.,  64  N.  J.  Law,  579,  46  Atl.  770 ;  Philadelphia,  W.  &  B.  R.  Co.  v.  Hogehmd, 
66  Md.  149,  7  Atl.  105,  59  Am.  Rep.  159 ;  Street  Ry.  Co.  v.  Eadie,  43  Ohio  St. 
91,  1  N.  E.  519,  54  Am.  Rep.  802 ;  Nesbit  v.  Town  of  Garner,  75  Iowa,  314,  39 
N.  W.  516,  1  L.  R.  A.  152,  9  Am.  St.  Rep.  486;  Hydes  Ferry  Turnpike  Co.  v. 
Yates,  108  Tenn.  428,  67  S.  W.  69.  But  a  person  riding  with  another  is,  of 
course,  chargeable  with  his  own  negligence  whereby  a  collision  with  another 
•carriage,  a  railway  train,  etc.,  results,  as,  e.  g.,  if  he  perceives  the  danger 
in  time,  but  does  not  warn  the  driver,  who  is  ignorant  of  it.  Hoag  v.  New 
York  Cent.  &  H.  R.  R.  Co.,  Ill  N.  Y.  199,  18  N.  E.  648 ;  Brickell  v.  New  York 
Cent.  &  H.  R.  R.  Co.,  120  N.  Y.  290,  24  N.  E.  449,  17  Am.  St.  Rep.  648.  So, 
in  some  states,  he  is  held  chargeable  with  the  negligence  of  the  driver  when 
both  are  engaged  in  a  joint  enterprise.  Donnelly  v.  Brooklyn  City  R.  Co.,  109 
N.  Y.  16,  15  N.  E.  733:  New  York,  C.  &  St.  L.  R.  Co.  v.  Kistler,  66  Ohio  St. 
326,  64  N.  E.  130;  Koplitz  v.  City  of  St.  Paul,  86  Minn.  373,  90  N.  W.  794, 
58  L.  R.  A.  74. 

In  some  states  it  is  held  that  if  a  husband  is  driving  his  wife  in  a  carriage, 
his  negligence  is  imputed  to  her,  so  as  to  debar  her  right  to  recover  for  in- 
juries in  a  collision  [Pennsylvania  R.  Co.  v.  Goodenough,  55  N.  J.  Law,  577, 
28  Atl.  3,  22  L.  R.  A.  460;  Carlisle  v.  Town  of  Sheldon,  38  Vt  440;  Peck  v. 
New  York,  N.  H.  &  H.  R.  Co.,  50  Conn.  379] ;  but  New  York  and  some  other 
states  reject  this  doctrine  [Hoag  v.  New  York  Cent.  &  H.  R.  R.  Co.,  Ill  N. 
Y.  199,  18  N.  E.  648;  Lake  Shore  &  M.  S.  R.  Co.  v.  Mclntosh,  140  Ind.  261, 
38  N.  E.  476 ;  Lammers  v.  Great  Northern  R.  Co.,  82  Minn.  120,  84  N.  W.  728].) 


NEGLIGENCE.  597 

6.  Effect  of  acting  in  an  emergency. 

(69  N.  T.  158,  25  Am.  Rep.  162.) 

TWOMLEY  v.  CENTRAL  PARK,  N.  &  E.  R.  R.  CO.  (In  part). 
(Court  of  Appeals  of  New  York.     March  27,  1877.) 

1.  CONTRIBUTOBY   NEGLIGENCE— ACTION   IN   EMERGENCY. 

Where  a  passenger  jumped  from  a  moving  street  car  to  escape  a  threat- 
ened collision  between  the  car  and  a  train  at  a  crossing,  and  was  injured, 
the  question  of  negligence  in  so  doing  is  to  be  judged  by  the  circumstances 
as  they  appeared  to  the  passengers,  and  is  not  affected  by  the  fact  that 
the  car  passed  in  safety. 

2.  SAME— EVIDENCE. 

Where  a  passenger  jumped  from  a  moving  street  car  to  escape  a  threat- 
ened collision  with  a  train,  and  was  injured,  it  was  competent,  on  the 
question  of  contributory  negligence  in  an  action  against  the  street  car 
company,  to  show  the  action  of  the  other  passengers. 

Action  for  personal  injuries  through  negligence.  On  the  24th  Oc- 
tober, 1870,  plaintiff  took  passage  on  one  of  defendant's  horse  cars  in 
the  city  of  New  York.  The  track  of  defendant's  road  crosses  the 
tracks  of  the  New  York  Central  &  Hudson  River  Railroad  Company 
near  the  Grand  Central  depot  in  said  city.  Just  as  the  car  reached  a 
track  upon  which  an  express  train  was  approaching,  the  driver  stopped 
to  allow  a  passenger  to  alight.  If  the  car  had  remained  stationary 
the  train  could  have  passed,  but  the  driver  whipped  up  his  horses  and 
the  car  passed  upon  the  track  in  front  of  the  train.  The  engineer  re- 
versed his  engine  and  put  on  the  brakes.  All  of  the  passengers  in  the 
car,  with  one  exception,  on  perceiving  the  danger,  rushed  out  and 
jumped  from  the  car,  and  plaintiff  in  doing  so  fell  and  was  seriously 
injured.  The  car  passed  over  the  track  just  in  time  to  escape  the  en- 
gine. Judgment  for  plaintiff. 

ALLEN,  J.  The  question  in  this  case  was  one  of  fact,  depending 
upon  conflicting  evidence,  and  deductions  to  be  drawn  from  the  facts  as 
they  should  be  determined  from  the  evidence.  That  question  was  de- 
termined adversely  to  the  defendant.  The  jury  have  found  that  the 
plaintiff  was  placed  by  the  reckless  or  careless  act  of  the  servants  and 
agents  of  the  defendant  in  such  a  position  as  compelled  her  to  choose 
upon  the  instant,  and  in  the  face  of  an  apparently  great  and  impending 
peril,  between  two  hazards,  a  dangerous  leap  from  the  moving  car,  or 
to  remain  in  the  car  at  certain  peril.  They  have  also  found  that  her 
action  was  such  as  might  have  been  taken  by  any  one  of  ordinary  pru- 
dence, placed  in  the  same  situation,  and  was  not  the  result  of  an  unrea- 
sonable alarm,  and  that  the  injury  was  the  result  of  such  enforced  ac- 
tion. The  verdict  was  that  the  misconduct  of  the  persons  in  charge  of 
the  car  was  the  proximate  cause  of  the  injury,  without  concurrent  negli- 


598  LAW  OF  TORTS. 

* 

gcnce  on  the  part  of  the  plaintiff.  The  peril  of  remaining  in  the  car 
was  properly  judged  by  the  circumstances  as  they  then  appeared  to  the 
passengers,  and  not  by  the  result.  The  fact  that  the  car  did  pass  over 
safely  cannot  reflect  upon  the  action  of  the  plaintiff,  and  does  not  prove 
that  she  was  imprudent  or  negligent  in  jumping  from  the  car;  she  was 
compelled  to  act,  and  chose  the  hazard  which  appeared  to  be  the  least, 
that  is,  to  act  upon  the  probabilities  as  they  appeared  at  the  time. 

The  liability  of  the  defendant,  upon  the  facts,  is  well  established  by 
authority.  Jones  v.  Boyce,  i  Stark.  493 ;  Stokes  v.  Saltonstall,  13  Pet. 
181,  10  L.  Ed.  115 ;  Buel  v.  N.  Y.  C.  R.  Co.,  31  N.  Y.  314,  88  Am.  Dec. 
271 ;  Filer  v.  Same,  49  N.  Y.  47,  10  Am.  Rep.  327. 

Evidence  of  the  action  of  the  other  passengers  was  competent  as  a 
part  of  the  res  gestae,  and  also  as  evidence  of  what  was  deemed  prudent 
by  those  in  the  same  situation,  having  an  interest  to  take  the  least  and 
avoid  the  greater  hazard. 

The  only  question  was  one  of  fact,  and  the  judgment  must  be  af- 
firmed. All  concur. 

Judgment  affirmed. 

(See,  to  the  same  effect,  Lewis  v.  Long  Island  R.  Co.,  162  N.  Y.  52,  56  N.  E. 
548 ;  Benoit  v.  Troy  &  L.  R.  Co.,  154  N.  Y.  223,  48  N.  B.  524 :  Vallo  v.  United 
States  Exp.  Co.,  147  Pa.  404,  23  Atl.  594,  14  L.  R.  A.  743,  30  Am.  St.  Rep.  741 ; 
Donahue  v.  Kelly,  181  Pa.  93;  Cody  v.  New  York  &  N.  E.  R.  Co.,  151  Mass. 
4f>2,  24  N.  E.  402,  7  L.  R.  A.  843;  Lawrence  v.  Green.  70  Cal.  417,  11  Pac.  750, 
59  Am.  Rep.  428 ;  Chicago  &  A.  R.  Co.  v.  Becker,  76  111.  25 ;  Stokes  v.  Salton- 
stall, 13  Pet.  181,  10  L.  Ed.  115.  But  "if  a  party  by  his  own  negligence  has 
placed  himself  in  a  situation  of  peril,  and,  being  called  upon  in  a  sudden 
exigency  to  act,  mistakes  his  best  course  through  an  error  of  judgment,  he 
is  not  thereby  relieved."  Schneider  v.  Second  Ave.  R.  Co.,  133  N.  Y.  583,  30 
N.  E.  752.) 


7.  Effect  of  acting  under  stress  of  peril  to  human  life. 

(43  N.  Y.  502,  3  Am.  Rep.  721.) 

ECKERT  v.  LONG  ISLAND  R.  CO. 

(Court  of  Appeals  of  New  York.    January  24,  1871.) 

1.  NEGLIGENCE— CONTRIBUTORY— EFFORT  TO  SAVE  LIFE  OF  ANOTHER  IN  PERIL. 

Negligence  cannot  be  imputed  by  law  to  a  person  in  his  effort  to  save 
the  life  of  another  in  extreme  peril,  unless  made  under  such  circum- 
stances as  to  constitute  rashness  in  the  judgment  of  prudent  persons. 

2.  SAME— INSTRUCTIONS  TO  JURY. 

Plaintiff's  intestate,  standing  50  feet  from  defendant's  railroad  track, 
suddenly  discovered  a  small  child  on  the  track  in  front  of  an  approaching 
train,  and,  without  a  moment's  hesitation,  ran  to  it,  seized  it,  and  threw 
it  in  safety  from  the  track,  but  was  struck  and  killed  by  the  engine. 
Held,  in  an  action  to  recover  damages  for  his  death,  that  the  court  prop- 
erly refused  to  charge  that,  if  the  deceased  placed  himself  in  peril  from 
which  he  received  the  injury  to  save  the  child,  plaintiff  could  not  recover, 
but  properly  left  to  the  jury  the  question  of  whether  the  negligence  of  in- 
testate contributed  to  his  injury. 


NEGLIGENCE.  599 

Appeal  from  Supreme  Court,  General  Term,  Second  District. 

Action  brought  in  the  city  court  of  Brooklyn  by  Anna  Eckert,  as 
administratrix  of  Henry  Eckert,  deceased,  against  the  Long  Island 
"Railroad  Company,  to  recover  damages  for  the  death  of  her  husband, 
caused  by  the  alleged  negligence  of  defendant.  The  testimony  of  plain- 
tiff's witnesses  showed  that  the  intestate,  while  standing  talking  with  a 
companion  about  50  feet  from  defendant's  track  in  East  New  York, 
suddenly  discovered  a  child  three  or  four  years  old  on  the  track  at  a 
crossing  in  front  of  a  rapidly  approaching  train,  and  he  immediately  ran 
and  seized  it  and  threw  it  from  the  track,  but  before  he  could  get  clear 
of  the  track  was  struck  by  the  locomotive  and  killed.  Plaintiff's  wit- 
nesses testified  that  the  train  was  running  at  full  speed,  and  that  no  sig- 
nal was  given,  which  was  denied  by  defendant's  witnesses.  Defendant 
asked  a  nonsuit  on  the  ground  of  the  contributory  negligence  of  in- 
testate, which  was  refused.  The  court  also  refused  to  charge,  at  de- 
fendant's request,  that  if  deceased  voluntarily  placed  himself  in  peril, 
from  which  he  received  the  injury,  to  save  the  child,  whether  the  child 
was  or  was  not  in  danger,  the  plaintiff  could  not  recover,  and  submitted 
to  the  jury  the  question  whether  the  negligence  of  deceased  contributed 
to  the  accident.  Defendant  duly  excepted.  Verdict  and  judgment  for 
plaintiff,  which  was  affirmed  upon  appeal  to  the  supreme  court.  De- 
fendant appealed. 

GROVER,  J.  The  important  question  in  this  case  arises  upon  the 
exception  taken  by  the  defendant's  counsel  to  the  denial  of  his  motion 
for  a  nonsuit,  made  upon  the  ground  that  the  negligence  of  the  plain- 
tiff's intestate  contributed  to  the  injury  that  caused  his  death.  The  evi- 
dence showed  that  the  train  was  approaching  in  plain  view  of  the  de- 
ceased, and  had  he  for  his  own  purposes  attempted  to  cross  the  track, 
or  with  a  view  to  save  property  placed  himself  voluntarily  in  a  posi- 
tion where  he  might  have  received  an  injury  from  a  collision  with  the 
train,  his  conduct  would  have  been  grossly  negligent,  and  no  recovery 
could  have  been  had  for  such  injury.  But  the  evidence  further  showed 
that  there  was  a  small  child  upon  the  track,  who,  if  not  rescued,  must 
have  been  inevitably  crushed  by  the  rapidly  approaching  train.  This 
the  deceased  saw,  and  he  owed  a  duty  of  important  obligation  to  this 
child  to  rescue  it  from  its  extreme  peril,  if  he  could  do  so  without  in- 
curring great  danger  to  himself.  Negligence  implies  some  act  of  com- 
mission or  omission  wrongful  in  itself.  Under  the  circumstances  in 
which  the  deceased  was  placed,  it  was  not  wrongful  in  him  to  make 
every  effort  in  his  power  to  rescue  the  child,  compatible  with  a  reason- 
able regard  for  his  own  safety.  It  was  his  duty  to  exercise  his  judg- 
ment as  to  whether  he  could  probably  save  the  child  without  serious 
injury  to  himself.  If,  from  the  appearances,  he  believed  that  he  could, 
it  was  not  negligence  to  make  an  attempt  so  to  do,  although  believing 
that  possibly  he  might  fail  and  receive  an  injury  himself.  He  had  no 


GOO  LAW  OF  TORTS. 

time  for  deliberation.  He  must  act  instantly,  if  at  all,  as  a  moment's 
delay  would  have  been  fatal  to  the  child.  The  law  has  so  high  a  regard 
for  human  life  that  it  will  not  impute  negligence  to  an  effort  to  pre- 
serve it,  unless  made  under  such  circumstances  as  to  constitute  rash- 
ness in  the  judgment  of  prudent  persons.  For  a  person  engaged  in  his 
ordinary  affairs,  or  in  the  mere  protection  of  property,  knowingly  and 
voluntarily  to  place  himself  in  a  position  where  he  is  liable  to  receive  a 
serious  injury,  is  negligence  which  will  preclude  a  recovery  for  an  in- 
jury so  received ;  but  when  the  exposure  is  for  the  purpose  of  saving 
life  it  is  not  wrongful,  and  therefore  not  negligent,  unless  such  as  to  be 
regarded  either  rash  or  reckless.  The  jury  were  warranted  in  finding 
the  deceased  free  from  negligence  under  the  rule  as  above  stated.  The 
motion  for  a  nonsuit  was  therefore  properly  denied.  That  the  jury 
were  warranted  in  finding  the  defendant  guilty  of  negligence  in  running 
the  train  in  the  manner  it  was  running  requires  no  discussion.  None 
of  the  exceptions  taken  to  the  charge  as  given,  or  to  the  refusals  to 
charge  as  requested,  affect  the  right  of  recovery.  Upon  the  principle 
above  stated,  the  judgment  appealed  from  must  be  affirmed,  with  costs. 

CHURCH,  C.  J.,  and  PECKHAM  and  RAPALLO,  JJ.,  concur. 
ALLEN  and  FOLGER,  JJ.,  dissenting. 

Judgment  affirmed. 

(See,  to  the  same  effect,  Spooner  v.  Railroad  Co.,  115  N.  Y.  22.  21  N.  E.  606; 
West  Chicago  St.  R.  Co.  v.  Liderman,  187  111.  463,  58  N.  E.  367,  32  L.  R.  A. 
655,  79  Am.  St.  Rep.  226;  Peyton  v.  Texas  &  P.  R.  Co.,  41  La.  Ann.  861,  6 
South.  690,  17  Am.  St.  Rep.  430 ;  Central  R.  Co.  v.  Crosby,  74  Ga.  737,  58  Am. 
Rep.  463;  Linnehau  v.  Sampson,  126  Mass.  506,  30  Am.  Rep.  692;  Pennsyl- 
vania Co.  v.  Roney,  89  Ind.  453,  46  Am.  Rep.  173 ;  Cottrill  v.  Railroad  Co.,  47 
Wis.  634,  3  N.  W.  376,  32  Am.  Rep.  796.  But  the  rule  has  been  held  inap- 
plicable where  a  person  exposed  himself  to  imminent  danger  merely  to  save 
his  property,  as  where  an  owner  of  cattle  got  on  a  railroad  track  to  drive 
them  off  while  a  train  was  approaching.  Morris  v.  Railway  Co.,  148  N.  Y. 
182,  42  N.  E.  579.) 


IV.  LIABILITY  OF  A  MASTER  FOR  THE  NEGLIGENCE  OF 

HIS  SERVANT. 

(64  N.  Y.  129,  21  Am.  Rep.  597.) 

ROUNDS  v.  DELAWARE,  L.  &  W.  R.  CO. 

(Court  of  Appeals  of  New  York.    February  1,  1876.) 

1.  MASTEB  AND  SEBVANT— LIABILITY  FOB  WRONG  DONE  BY  SERVANT. 

The  master  is  responsible  civiliter  for  the  wrongful  act  of  his  servant, 
causing  injury  to  a  third  person,  whether  the  act  was  one  of  negligence 
or  positive  misfeasance,  provided  the  servant  was  at  the  time  acting  for 
the  master,  and  within  the  scope  of  the  business  intrusted  to  him;  and  if. 


NEGLIGENCE.  601 

In  the  line  of  his  duty,  he  is  authorized  to  use  force,  the  master  commits 
It  to  him  to  decide  what  degree  of  force  he  shall  use,  and  is  liable  if, 
by  his  mis  judgment  and  violence  of  temper,  a  degree  of  force  is  used,  even 
though  willfully  and  recklessly,  which  is  not  required  by  the  necessity 
of  the  occasion,  and  a  third  person  is  thereby  injured.  If,  however,  the 
servant,  under  guise  and  cover  of  executing  his  master's  orders,  willfully 
and  designedly,  for  the  purpose  of  accomplishing  his  own  independent,  ma- 
licious, or  wicked  purposes,  does  an  injury  to  another,  the  master  is  not 
liable. 

2.  SAME. 

In  an  action  for  personal  injuries  received  by  being  run  over  by  de- 
fendant's train,  it  appeared  that  plaintiff,  a  boy  of  12  years,  wrongfully 
on  the  platform  of  defendant's  baggage-car,  being  told  by  the  baggageman 
to  get  off  while  the  train  was  in  motion  in  the  switch-yard,  and  protest- 
ing on  account  of  the  danger  from  wood-piles  lying  along  the  track,  was 
kicked  off  by  the  baggageman,  and,  striking  the  wood-pile,  rolled  under 
the  train  and  was  injured.  Defendant  had  posted  rules  forbidding  all 
persons  not  employees  to  ride  on  the  baggage-car,  and  requiring  the  bag- 
gageman to  rigidly  enforce  them.  Held,  that  it  was  a  question  for  the 
jury  whether  the  baggageman  acted  in  the  line  of  his  duty,  or  willfully 
and  maliciously,  outside  of  and  in  excess  of  his  duty,  and  a  finding  for 
plaintiff  should  not  be  disturbed. 

Appeal  from  Supreme  Court,  General  Term,  Third  Department. 

Action  by  George  M.  Rounds,  by  guardian,  etc.,  against  the  Dela- 
ware, Lacka wanna  &  Western  Railroad  Company,  for  injuries  sustained 
by  plaintiff  by  being  kicked  off  of  one  of  defendant's  baggage-cars  by 
the  baggageman.  Plaintiff,  a  boy  12  years  of  age,  jumped  on  the  plat- 
form of  the  baggage-car  in  an  empty  train  while  it  was  being  switched 
in  defendant's  yard,  and,  being  found  by  the  baggageman  while  the  train 
was  in  motion,  was  ordered  off;  but,  being  unable  to  jump  off  without 
great  danger  from  wood-piles  on  the  side  of  the  track,  told  the  bag- 
gageman of  such  fact;  whereupon  the  baggageman  kicked  him  off, 
and  plaintiff,  striking  against  the  wood-pile,  rolled  under  the  car,  and 
his  leg  was  crushed.  A  printed  notice  was  posted  up  in  the  baggage- 
car,  and  another  near  where  plaintiff  was  standing,  as  follows:  "No 
person  will  be  allowed  to  ride  on  the  baggage-car  except  the  regular 
trainmen  employed  thereon.  Conductor  and  baggageman  must  see 
this  order  strictly  enforced."  The  posted  time-cards  contained  another 
notice,  as  follows:  "Train  baggagemen  must  not  permit  any  person 
to  ride  in  the  baggage-car  except  the  conductor  and  news  agent  con- 
nected with  the  train.  Conductor  and  baggageman  will  be  held  alike 
accountable  for  a  rigid  enforcement  of  this  rule."  Defendant  asked 
a  nonsuit  on  the  ground  that  plaintiff  was  a  trespasser,  and  was  guilty 
of  contributory  negligence,  and  that  the  act  of  the  baggageman  was  will- 
ful and  outside  the  line  of  his  employment;  which  the  court  denied, 
ruling  that  it  was  a  question  for  the  jury  whether  the  baggageman  was 
acting  within  the  authority  of  the  company  in  putting  plaintiff  off,  and 
whether  he  acted  willfully  and  wrongfully,  to  which  defendant  except- 
ed.  The  court  charged  the  jury  that  plaintiff  was  a  trespasser  on  the 


»>UL'  LAW  OF  TORTS. 

» 

car,  but  if  the  baggageman,  nevertheless,  in  the  discharge  of  his  duty, 
pushed  him  off  the  train  in  an  improper  manner,  and  at  a  dangerous 
place,  defendant  was  liable;  and  also  that,  if  the  baggageman  pushed 
plaintiff  off  the  train,  and,  in  doing  so,  was  acting  as  the  employee 
of  defendant,  in  good  faith,  in  the  discharge  of  a  duty  he  owed  the 
company,  defendant  would  be  liable  for  the  careless  and  negligent 
discharge  of  duty;  but  if  he  was  acting  willfully  and  maliciously  to- 
wards plaintiff,  outside  of  and  in  excess  of  his  duty,  then  the  baggage- 
man alone  would  be  responsible  in  law  for  the  consequences ;  to  which 
defendant  excepted,  and  requested  the  court  to  modify  the  charge,  or 
to  charge  that  defendant  was  not  liable  if  the  baggageman  acted  will- 
fully and  wantonly,  without  authority  from  defendant.  Verdict  and 
judgment  for  plaintiff.  On  appeal  the  judgment  was  affirmed  by  the 
general  term.  3  Hun,  329.  Defendant  again  appealed. 

ANDREWS,  J.  There  is,  at  this  time,  but  little  conflict  of  judicial 
opinion  in  respect  to  the  general  rule  by  which  the  liability  of  a  master 
for  the  misconduct  of  his  servant,  resulting  in  injury  to  third  persons, 
is  to  be  tested  and  ascertained.  In  Higgins  v.  Turnpike  Co.,  46  N.  Y. 
23,  7  Am.  Rep.  293,  this  subject  was  considered  by  this  court,  and  the 
rule  was  declared  to  be  that  the  master  was  responsible  civiliter  for  the 
wrongful  act  of  the  servant  causing  injury  to  a  third  person,  whether 
the  act  was  one  of  negligence  or  positive  misfeasance,  provided  the 
servant  was  at  the  time  acting  for  the  master  and  within  the  scope  of 
the  business  intrusted  to  him.  The  master  is  liable  only  for  the  author- 
ized acts  of  the  servant,  and  the  root  of  his  liability  for  the  servant's 
acts  is  his  consent,  express  or  implied,  thereto.  When  the  master  is 
to  be  considered  as  having  authorized  the  wrongful  act  of  the  servant, 
so  as  to  make  him  liable  for  his  misconduct,  is  the  point  of  difficulty. 
Where  authority  is  conferred  to  act  for  another,  without  special  limita- 
tion, it  carries  with  it,  by  implication,  authority  to  do  all  things  neces- 
sary to  its  execution ;  and  when  it  involves  the  exercise  of  the  discretion 
of  the  servant,  or  the  use  of  force  towards  or  against  another,  the  use 
of  such  discretion  or  force  is  a  part  of  the  thing  authorized ;  and  when 
exercised  becomes,  as  to  third  persons,  the  discretion  and  act  of  the 
master;  and  this,  although  the  servant  departed  from  the  private  in- 
structions of  the  master,  provided  he  was  engaged  at  the  time  in  doing 
his  master's  business,  and  was  acting  within  the  general  scope  of  his  em- 
ployment. It  is  not  the  test  of  the  master's  liability  for  the  wrongful 
act  of  the  servant,  from  which  injury  to  a  third  person  has  resulted,  that 
he  expressly  authorized  the  particular  act  and  conduct  which  occasioned 
it.  In  most  cases,  where  the  master  has  been  held  liable  for  the  negli- 
gent or  tortious  act  of  the  servant,  the  servant  acted,  not  only  without 
express  authority  to  do  the  wrong,  but  in  violation  of  his  duty  to  the 
master. 


NEGLIGENCE.  (503 

It  is,  in  general,  sufficient  to  make  the  master  responsible  that  he  gave 
to  the  servant  an  authority  or  made  it  his  duty  to  act  in  respect  to  the 
business  in  which  he  was  engaged  when  the  wrong  was  committed,  and 
that  the  act  complained  of  was  done  in  the  course  of  his  employment. 
The  master  in  that  case  will  be  deemed  to  have  consented  to  and  author- 
ized the  act  of  the  servant,  and  he  will  not  be  excused  from  liability,  al- 
though the  servant  abused  his  authority,  or  was  reckless  in  the  perform- 
ance of  his  duty,  or  inflicted  an  unnecessary  injury  in  executing  his 
master's  orders.  The  master  who  puts  the  servant  in  a  place  of  trust 
or  responsibility,  or  commits  to  him  the  management  of  his  business 
or  the  care  of  his  property,  is  justly  held  responsible  when  the  servant, 
through  lack  of  judgment  or  discretion,  or  from  infirmity  of  temper, 
or  under  the  influence  of  passion  aroused  by  the  circumstances  and  the 
occasion,  goes  beyond  the  strict  line  of  his  duty  or  authority,  and  in- 
flicts an  unjustifiable  injury  upon  another.  But  it  is  said  that  the  mas- 
ter is  not  responsible  for  the  willful  act  of  the  servant.  This  is  the  lan- 
guage of  some  of  the  cases,  and  it  becomes  necessary  to  ascertain  its 
meaning  when  used  in  defining  the  master's  responsibility. 

The  case  of  McManus  v.  Crickett,  I  East,  106,  turned  upon  the  form 
of  the  action,  and  the  distinction  between  trespass  and  case;  but  Lord 
Kenyon  in  pronouncing  the  judgment  of  the  court  said:  "Where  a 
servant  quits  sight  of  the  object  for  which  he  was  employed,  and,  with- 
out having  in  view  his  master's  orders,  pursues  that  which  his  own 
malice  suggests,  his  master  will  not  be  liable  for  such  acts."  This  lan- 
guage was  cited  with  approval  in  Wright  v.  Wilcox,  19  Wend.  343,  32 
Am.  Dec.  507;  and  the  master  was  held  not  to  be  responsible  where 
the  servant,  in  driving  his  master's  wagon  along  the  highway,  willfully 
whipped  up  his  horses  while  the  plaintiff's  son,  a  young  lad,  was  stand- 
ing between  the  front  and  back  wheels,  attempting,  with  the  implied 
permission  of  the  servant,  to  get  into  the  wagon,  in  consequence  of 
which  the  boy  was  thrown  down,  run  over,  and  injured.  The  servant 
was  cautioned  by  a  by-stander  that  if  he  did  not  stop  he  would  kill  the 
boy.  The  court,  in  the  opinion  delivered,  assumed  that  the  evidence 
showed  that  the  servant  whipped  up  the  horses  with  a  willful  design  to 
throw  the  boy  off.  The  act  of  the  servant  was  imminently  dangerous, 
and  it  might  reasonably  be  inferred  from  the  evidence  that  he  designed 
the  injury  which  resulted  from  it.  "The  law,"  said  Cowen,  J.,  "holds 
such  a  willful  act  a  departure  from  the  master's  business."  So  in  Van- 
derbilt  v.  Turnpike  Co.,  2  N.  Y.  479,  51  Am.  Dec.  315,  the  master  of 
the  defendant's  boat  intentionally  ran  into  the  boat  of  the  plaintiff,  and 
the  court  held  that  this  was  a  willful  trespass  of  the  master,  for  which 
the  defendant  was  not  liable.  In  Lyons  v.  Martin,  8  Adol.  &  E.  512, 
it  was  held  that  where  a  servant,  merely  authorized  to  distrain  cattle 
damage-feasant,  drives  cattle  from  the  highway  into  his  master's  close, 
and  there  distrains  them,  the  master  is  not  liable.  In  Mali  v.  Lord,  30* 


004  LAW  OF  TORTS. 

« 

N.  Y.  381,  loo  Am.  Dec.  448,  the  act  complained  of  was  an  illegal  im- 
prisonment of  the  plaintiff  by  the  servant  of  the  defendant,  and  the 
court  held  that  the  authority  to  do  the  act  could  not  be  implied  from  the 
general  employment  of  the  servant.  The  imprisonment,  assuming  that 
the  suspicion  upon  which  it  was  made  was  well  founded,  was  illegal. 
The  master  could  not  lawfully  have  detained  the  defendant  if  he  had 
been  present,  and  the  court  were  of  the  opinion  that  the  servant  could 
not  be  said  to  be  engaged  in  his  master's  business  when  he  assumed 
to  do  what  the  master  could  not  have  done  himself.  See,  also,  Boling- 
broke  v.  Local  Board,  etc.,  L.  R.  9  C.  P.  575.  It  is  quite  useless  to  at- 
tempt to  reconcile  all  the  cases.  The  discrepancy  between  them  arises 
not  so  much  from  a  difference  of  opinion  as  to  the  rule  of  law  on  the 
subject  as  from  its  application  to  the  facts  of  a  given  case. 

It  seems  to  be  clear  enough  from  the  cases  in  this  state  that  the  act 
of  the  servant  causing  actionable  injury  to  a  third  person  does  not 
subject  the  master  to  civil  responsibility  in  all  cases  where  it  appears 
that  the  servant  was  at  the  time  in  the  use  of  his  master's  property,  or 
because  the  act,  in  some  general  sense,  was  done  while  he  was  doing  his 
master's  business,  irrespective  of  the  real  nature  and  motive  of  the  trans- 
action. On  the  other  hand,  the  master  is  not  exempt  from  responsibility 
in  all  cases  on  showing  that  the  servant,  without  authority,  designed  to 
do  the  act  or  the  injury  complained  of.  If  he  is  authorized  to  use  force 
against  another,  when  necessary  in  executing  his  master's  orders,  the 
master  commits  it  to  him  to  decide  what  degree  of  force  he  shall  use ; 
and  if,  through  mis  judgment  or  violence  of  temper,  he  goes  beyond  the 
necessity  of  the  occasion,  and  gives  a  right  of  action  to  another,  he 
cannot,  as  to  third  persons,  be  said  to  have  been  acting  without  the 
line  of  his  duty,  or  to  have  departed  from  his  master's  business.  If, 
however,  the  servant,  under  guise  and  cover  of  executing  his  master's 
orders,  and  exercising  the  authority  conferred  upon  him,  willfully  and 
designedly,  for  the  purpose  of  accomplishing  his  own  independent,  ma- 
licious, or  wicked  purposes,  does  an  injury  to  another,  then  the  master 
is  not  liable.  The  relation  of  master  and  servant,  as  to  that  transaction, 
does  not  exist  between  them.  It  is  a  willful  and  wanton  wrong  and 
trespass,  for  which  the  master  cannot  be  held  responsible ;  and,  when  it 
is  said  that  the  master  is  not  responsible  for  the  willful  wrong  of  the 
servant,  the  language  is  to  be  understood  as  referring  to  an  act  of  posi- 
tive and  designed  injury,  not  done  with  a  view  to  the  master's  service 
or  for  the  purpose  of  executing  his  orders.  In  this  view,  the  judge 
at  the  trial  correctly  refused  to  qualify  his  charge,  or  to  charge  that  it 
was  sufficient  to  exempt  the  defendant  from  liability  that  the  act  of  the 
baggageman  in  putting  the  plaintiff  off  the  car  was  willful.  He  had 
already  charged  that  if  the  baggageman  acted  "willfully  and  malicious- 
ly towards  the  plaintiff,  outside  of  and  in  excess  of  his  duty,"  in  putting 
him  off  the  car,  the  defendant  was  not  liable.  If  the  counsel  intended 


NEGLIGENCE.  605 

to  claim  that  the  defendant  was  exempt  from  responsibility  if  the  bag- 
gageman acted  willfully,  although  without  malice,  the  point  was  not 
well  taken.  That  the  baggageman  designed  to  put  the  plaintiff  off  the 
car  was  not  disputed,  and  this  was  consistent  with  the  authority  and 
duty  intrusted  to  him.  But  a  willful  act  which  will  exempt  a  master 
from  liability  for  the  tort  of  his  servant  must  be  done  outside  of  his 
duty  and  his  master's  business.  The  charge  was  therefore  strictly  cor- 
rect, and  the  exception  was  not  well  taken. 

Neither  was  the  defendant  entitled  to  have  the  court  rule,  as  matter 
of  law,  that,  upon  the  circumstances  as  shown  by  the  evidence  on  the 
part  of  thei  plaintiff,  the  defendant  was  not  responsible.  It  is  con- 
ceded that  the  removal  of  the  plaintiff  from  the  car  was  within  the 
scope  of  the  authority  conferred  upon  the  baggageman.  The  plaintiff 
had  no  right  to  be  there.  He  was  not  a  passenger  or  servant,  and  had 
no  express  or  implied  permission  to  be  upon  the  car.  The  baggageman, 
in  kicking  the  boy  from  the  platform,  acted  violently  and  unreasonably ; 
and  to  do  this  while  the  car  was  in  motion,  and  when  the  space  be- 
tween it  and  the  wood-pile  was  so  small,  was  dangerous  in  the  extreme. 
But  the  court  could  not  say  from  the  evidence  that  the  baggageman  was 
acting  outside  of  and  without  regard  to  his  employment,  or  designed  to 
do  the  injury  which  resulted,  or  that  the  act  was  willful,  within  the  rule 
we  have  stated.  If  the  master,  when  sued  for  an  injury  resulting  from 
the  tortious  act  of  his  servant  while  apparently  engaged  in  executing 
his  orders,  claims  exemption  upon  the  ground  that  the  servant  was,  in 
fact,  pursuing  his  own  purposes,  without  reference  to  his  master's 
business,  and  was  acting  maliciously  and  willfully,  it  must,  ordinarily, 
be  left  to  the  jury  to  determine  this  issue  upon  a  consideration  of  all 
the  facts  and  circumstances  proved.  See  Jackson  v.  Railroad  Co.,  47 
N.  Y.  274,  7  Am.  Rep.  448.  There  may  be  cases  where  this  rule  does 
not  apply,  and  where  the  court  would  be  justified  in  taking  the  case 
from  the  jury ;  but  where  different  inferences  may  be  drawn  from  the 
facts  proved,  and  when,  in  one  view,  they  may  be  consistent  with  the 
liability  of  the  master,  the  case  must  be  left  to  the  jury.  The  fact  that 
the  plaintiff  was  a  trespasser  on  the  cars  is  not  a  defense.  The  lad  did 
not  forfeit  his  life,  or  subject  himself  to  the  loss  of  his  limbs,  because  he 
was  wrongfully  on  the  car.  The  defendant  owed  him  no  duty  of  care 
by  reason  of  any  special  relation  assumed  or  existing  between  the  com- 
pany and  him,  but  he  was  entitled  to  be  protected  against  unnecessary 
injury  by  the  defendant  or  its  servants  in  exercising  the  right  of  remov- 
ing him,  and  especially  from  the  unnecessary  and  unjustifiable  act  of 
the  baggageman  by  which  his  life  was  put  in  peril,  and  which  resulted 
in  his  losing  his  limb.  Sanford  v.  Railroad  Co.,  23  N.  Y.  343,  80  Am. 
Dec.  286 ;  Lovett  v.  Railroad  Co.,  9  Allen,  557 ;  Holmes  v.  Wakefield, 
12  Allen,  580,  90  Am.  Dec.  171. 


606  LAW  OF  TORTS. 

* 

No  error  of  law  was  committed  on  the  trial,  and  the  judgment  of  the 
general  term  should  be  affirmed,  with  costs.     All  concur. 
Judgment  affirmed. 

(See  also  Mott  v.  Ice  Co.,  73  N.  Y.  543;  Quinn  v.  Power,  87  N.  Y.  535,  41 
Am.  Rep.  392 ;  Palmeri  v.  Manhattan  R.  Co.,  133  IS7.  Y.  261,  30  N.  E.  1001,  16 
L.  R.  A.  136,  28  Am.  St.  Rep.  632 ;  Limpus  v.  Omnibus  Co.,  1  Hurl.  &  C.  526 ; 
Mitchell  v.  Crassweller,  13  C.  B.  237;  Cavanagh  v.  Dinsmore,  12  Hun,  465; 
Howe  v.  Newmarch,  12  Allen,  49;  Walton  v.  Car  Co.,  139  Mass.  556,  2  N.  B. 
101 ;  McCarthy  v.  Timmins,  178  Mass.  378,  59  N.  E.  1038,  86  Am.  St.  Rep.  490 ; 
Driscoll  v.  Scanlon,  165  Mass.  348,  43  N.  E.  100,  52  Am.  St.  Rep.  523 ;  Ritchie 
v.  Waller,  63  Conn.  155,  28  Atl.  29,  27  L.  R.  A.  161,  38  Am.  St.  Rep.  361 ;  Stone 
v.  Hills,  45  Conn.  44,  29  Am.  Rep.  635 ;  Philadelphia  &  R.  R.  Co.  .v.  Derby,  14 
How.  468,  14  L.  Ed.  502.) 


V.  LIABILITY  OF  AN  EMPLOYER  FOR  THE  NEGLIGENCE 
OF  A  CONTRACTOR. 

(156  N.  Y.  109,  50  N.  E.  957,  41  L.  R.  A.  391,  60  Am.  St.  Rep.  542.) 

BERG  v.  PARSONS  (in  part). 
(Court  of  Appeals  of  New  York.     June  7,  1898.) 

INDEPENDENT  CONTEACTOB— NEGLIGENCE— LIABILITY  OF  EMPLOYES. 

Where  the  relation  of  master  and  servant  or  principal  and  agent  does 
not  exist,  but  an  injury  results  from  negligence  in  the  performance  of 
work  by  a  contractor,  the  employer  is  not  responsible  for  the  contractor's 
negligence,  or  that  of  his  servants.  Thus,  where  an  owner  of  real  estate 
engaged  a  contractor  to  remove  rock  from  his  premises  by  blasting,  he 
was  held  not  responsible  for  the  negligence  of  such  contractor  or  his 
employees  in  doing  the  work,  whereby  injury  was  done  to  adjacent 
premises. 

Appeal  from  Supreme  Court,  General  Term,  First  Department. 

Action  for  damages  for  injuries  alleged  to  have  been  caused  to  the 
building  of  plaintiff  by  reason  of  the  negligence  of  a  contractor  em- 
ployed by  defendant  to  blast  out  a  cellar  on  the  premises  of  defendant 
adjacent  to  those  of  plaintiff.  From  a  judgment  of  the  General  Term 
(go  Hun,  267,  35  N.  Y.  Supp.  780)  affirming  a  judgment  for  plaintiff,  de- 
fendant appeals.  Reversed. 

MARTIN,  J.  The  doctrine  of  respondeat  superior  is  based  upon  the 
relation  of  master  and  servant  or  principal  and  agent.  As  no  such  re- 
lation existed  between  the  parties,  I  find  no  ground  upon  which  the 
judgment  in  this  action  can  be  sustained. 

The  rule  that  where  the  relation  of  master  and  servant  or  principal 
and  agent  does  not  exist,  but  an  injury  results  from  negligence  in  the 
performance  of  work  by  a  contractor,  the  party  with  whom  he  contracts 


NEGLIGENCE.  607 

is  not  responsible  for  his  negligence  or  that  of  his  servants,  is  well  estab- 
lished by  the  authorities  in  this  state.  Blake  v.  Ferris,  5  N.  Y.  48,  55 
Am.  Dec.  304 ;  Pack  v.  Mayor,  etc.,  8  N.  Y.  222 ;  Kelly  v.  Mayor,  etc., 
ii  N.  Y.  432;  McCafferty  v.  Railroad  Co.,  61  N.  Y.  178,  19  Am. 
Rep.  207;  King  v.  Railroad  Co.,  66  N.  Y.  181,  23  Am.  Rep.  37;  Town 
of  Pierrepont  v.  Loveless,  72  N.  Y.  211 ;  Ferguson  v.  Hubbell,  97  N.  Y. 
507,  49  Am.  Rep.  544 ;  Herrington  v.  Village  of  Lansingburgh,  1 10  N. 
Y.  145,  17  N.  E.  728,  6  Am.  St.  Rep.  348;  Roemer  v.  Striker,  142  N.  Y. 
134,  36  N.  E.  808. 

In  Blake  v.  Ferris  the  defendant  had  a  license  to  construct,  at  his  own 
expense,  a  sewer  in  a  public  street.  He  engaged  another  person  to  con- 
struct it  for  a  stipulated  price.  The  sewer  was  left  at  night  in  a  negli- 
gent manner  by  the  workmen  who  were  employed  in  its  construction. 
It  was  held  that  the  immediate  employer  of  the  servant,  through  whose 
negligence  the  injury  occurred,  was  responsible,  but  that  the  primary 
principal  or  employer  was  not. 

In  Pack  v.  Mayor,  etc.,  which  was  an  action  for  damages  caused  by 
the  alleged  negligence  of  a  contractor  in  blasting  rocks,  which  resulted 
in  injury  to  the  plaintiff's  house,  in  personal  injury  to  his  wife,  and  in 
killing  one  of  his  children,  it  was  held  that,  as  the  work  was  being 
prosecuted  under  a  contract  with  a  person  who  was  to  perform  it, 
the  corporation  was  not  liable,  but  that  a  recovery  for  such  an  injury 
could  be  had  only  against  the  person  actually  guilty  of  the  wrongful  act, 
or  against  one  to  whom  he  stands  in  the  relation  of  servant  or  agent, 
and  that  the  contractor  in  such  a  case  was  not  the  servant  or  agent  of 
the  corporation. 

The  Kelly  Case  was  also  an  action  for  damages  occasioned  by  negli- 
gence in  blasting.  In  that  case  there  was  a  contract  between  the  city 
and  a  contractor  to  grade  a  certain  street,  and  it  was  held  that  the  city 
was  not  liable  for  damages  occasioned  by  negligence  in  the  performance 
of  the  work,  but  that  the  contractor  was  alone  liable,  although  the  con- 
tract provided  that  the  work  should  be  done  under  the  direction  and  to 
the  satisfaction  of  the  officers  of  the  corporation. 

The  McCafferty  Case  was  for  an  injury  to  the  plaintiff's  store  and 
property  by  alleged  negligence  in  blasting  rocks  necessary  for  the  con- 
struction of  the  defendant's  road.  There  the  corporation  had  let  the 
work  of  constructing  the  road  by  contract,  and  the  negligence  was  that 
of  the  contractor  or  his  employees ;  and  this  court  held  that  the  defend- 
ant was  not  liable,  and  that  there  was  no  distinction  between  real  and 
personal  property,  so  far  as  its  negligent  use  and  management  were 
concerned,  or  of  negligent  acts  upon  it  by  others. 

In  the  King  Case  the  owner  of  real  property  was  held  not  liable  for 
injuries  resulting  from  negligence  on  the  part  of  a  contractor  or  his  em- 
ployees engaged  in  performing  a  lawful  contract  for  specific  work  upon 
the  premises  of  the  defendant,  and  the  rule  that  the  law  will  not  impute 


t)08  LAW  OF  TORTS. 

to  one  person  the  negligent  acts  of  another,  unless  the  relation  of  master 
and  servant  or  principal  and  agent  exists,  was  again  asserted. 

The  same  doctrine  was  held  in  the  Town  of  Pierrepont  Case,  where 
the  Blake  and  Pack  Cases  were  followed,  and  it  was  declared  that  a 
contractor  or  his  employees  did  not  stand  in  the  relation  of  servants 
to  a  person  who  was  the  owner  of  the  property  and  with  whom  the  con- 
tract was  made,  and  that  the  latter  was  not  answerable  for  their  negli- 
gence. 

In  Ferguson  v.  Hubbell,  where  the  injury  for  which  a  recovery  was 
sought  resulted  from  the  act  of  a  contractor,  it  was  again  decided  that 
the  contractor  was  in  no  sense  the  servant  of  the  defendant,  and  that 
the  doctrine  of  respondeat  superior  did  not  apply. 

The  Herrington  Case  was  for  damages  occasioned  by  carelessness  in 
blasting.  The  work  was  done  by  contractors,  and  the  court  followed 
its  previous  decisions,  and  held  that  the  defendant  was  not  liable,  but 
that  the  injury  was  occasioned  by  the  negligence  of  the  contractors, 
and  that  they  alone  were  responsible. 

The  Roemer  Case  was  also  for  negligence  in  blasting  and  excavating 
on  the  defendant's  premises  which  adjoined  the  premises  of  the  plain- 
tiff. The  work  was  done  by  a  contractor,  and  the  owner  was  held  not 
liable. 

It  seems  to  me  that  the  principle  of  these  decisions  is  decisive  of  the 
case  at  bar,  and  is  directly  adverse  to  the  contention  of  the  respondent. 
The  only  authorities  in  this  state  cited  as  sustaining  the  doctrine  con- 
tended for  are  Blake  v.  Ferris,  5  N.  Y.  48,  55  Am.  Dec.  304,  and  Storrs 
v.  City  of  Utica,  17  N.  Y.  104,  72  Am.  Dec.  436.  The  Blake  Case  we 
have  already  referred  to,  which  is  a  direct  authority  against  the  doctrine 
it  is  cited  to  sustain.  In  the  Storrs  Case  the  facts  were  different,  and 
the  principle  of  the  decision  has  no  application.  There  the  doctrine  of 
the  Blake,  Kelly,  and  Pack  Cases  was  expressly  indorsed  in  the  opinion 
of  Judge  Comstock,  who  said :  "Now,  in  these  two  cases  of  Pack  v. 
Mayor,  etc.,  and  Kelly  v.  Mayor,  etc.,  the  general  doctrines  so  well  set 
forth  in  Blake  v.  Ferris  were  applied  with  entire  precision  and  ac- 
curacy." While  the  learned  judge  doubted  the  propriety  of  the  ap- 
plication of  that  doctrine  to  the  case  of  Blake  v.  Ferris,  he  expressly 
recognized  its  correctness  and  its  applicability  to  a  case  like  this.  The 
decision  of  the  court  in  the  Storrs  Case  was  placed  upon  the  sole  ground 
that  it  was  the  duty  of  the  corporation  to  keep  its  streets  in  a  safe  condi- 
tion for  public  travel,  and  for  a  failure  to  discharge  that  duty  the  cor- 
poration was  liable.  The  question  of  the  negligent  manner  in  which 
the  work  was  performed  was  entirely  excluded  by  the  opinion  in  that 
case. 

There  are  certain  exceptional  cases  where  a  person  employing  a 
contractor  is  liable,  which,  briefly  stated,  are :  Where  the  employer  per- 
sonally interferes  with  the  work,  and  the  acts  performed  by  him  oc- 
casion the  injury;  where  the  thing  contracted  to  be  done  is  unlawful; 


NEGLIGENCE.  609 

where  the  acts  performed  create  a  public  nuisance ;  and  where  an  em- 
ployer is  bound  by  a  statute  to  do  a  thing  efficiently,  and  an  injury  re- 
sults from  its  inefficiency.  Manifestly,  this  case  falls  within  none  of  the 
exceptions  to  which  we  have  referred.  There  was  no  interference  by 
the  defendant.  The  thing  contracted  to  be  done  was  lawful.  The  work 
did  not  constitute  a  public  nuisance,  and  there  was  no  statute  binding 
the  defendant  to  efficiently  perform  it.  In  none  of  those  exceptional 
cases  does  the  question  of  negligence  arise.  There  the  action  is  based 
upon  the  wrongful  act  of  the  party,  and  may  be  maintained  against  the 
author  or  the  person  performing  or  continuing  it.  In  the  case  at  bar 
the  work  contracted  for  was  lawful  and  necessary  for  the  improvement 
and  use  of  the  defendant's  property.  Consequently  no  liability  can  be 
based  upon  the  illegality  of  the  transaction,  but  it  must  stand  upon  the 
negligence  of  the  contractor  or  his  employee  alone.  It  seems  very  obvi- 
ous that,  under  the  authorities,  the  defendant  \vas  not  responsible  for 
the  acts  of  the  contractor  or  his  employees,  and  that  the  court  should 
have  granted  the  defendant's  motion  for  a  nonsuit.  If  a  contrary  rule 
were  established,  it  would  not  only  impose  upon  the  owners  of  real 
property  an  improper  restraint  in  contracting  for  its  improvement,  but 
would  open  a  new  and  unlimited  field  for  actions  for  the  negligence  of 
others  which  has  not  hitherto  existed  in  this  state,  and  practically 
overrule  a  long  line  of  decisions  in  this  court  which  firmly  establish 
a  contrary  doctrine.  It  follows  that  the  judgment  should  be  reversed. 

PARKER,  C.  J.,  and  O'BRIEN  and  VANN,  JJ.,  concur  with  MAR-  , 
TIN,  J.,  for  reversal.     BARTLETT  and  HAIGHT,  JJ.,  concur  with 
GRAY,  J.,  for  affirmance. 

Judgment  reversed,  and  a  new  trial  granted,  with  costs  to  abide  the 
event. 

(On  the  general  principle  that  an  employer  is  not  liable  for  the  negligent 
acts  of  a  contractor  or  the  contractor's  servants,  see  Billiard  v.  Richardson, 
3  Gray,  349,  63  Am.  Dec.  743 ;  Boomer  v.  Wilbur,  176  Mass.  482,  57  N.  E.  1004, 
53  L.  R.  A.  172 ;  Engel  v.  Eureka  Club,  137  N.  Y.  100,  32  N.  E.  1052,  33  Am. 
St.  Rep.  692;  Burke  v.  Ireland,  166  N.  Y.  305,  59  N.  E.  914;  Edmundson  v. 
Pittsburg,  M.  &  Y.  R.  Co.,  Ill  Pa.  316,  2  Atl.  404.  Nor  is  a  contractor  liable 
for  the  negligence  of  a  sub-contractor  or  of  the  sub-contractor's  servants.  Cuff 
v.  Newark  &  N.  Y.  R.  Co.,  35  N.  J.  Law,  17,  10  Am.  Rep.  205;  Overton  v. 
Freeman,  11  C.  B.  867.  For  the  exceptional  cases  where  the  employer  is  held 
liable,  see  as  follows :  [a]  Where  the  employer  retains  control  over  the  con- 
tractor in  the  mode  of  doing  the  work,  Corrigan  v.  Elsinger,  81  Minn.  42.  8:< 
N.  W.  492 ;  New  Orleans,  M.  &  C.  R.  Co.  v.  Banning,  15  Wall.  649,  21  L.  Ed. 
220;  Congregation  v.  Smith,  163  Pa.  561,  30  Atl.  279;  [b]  where  the  thing  con- 
tracted to  be  done  is  itself  a  nuisance,  or  otherwise  unlawful,  Ellis  v.  Shef- 
field Gas  Co.,  2  E.  &  B.  767 ;  St  Paul  Water  Co.  v.  Ware,  16  Wall.  566,  21  L. 
Ed.  485;  Cuff  v.  Newark  &  N.  Y.  R.  Co.,  supra;  [el  where  a  contractor  cre- 
ates a  nuisance  upon  the  employer's  premises,  and  after  the  contractor's  work 
is  completed  the  employer  accepts  the  premises  in  that  condition,  and  suffers 
the  nuisance  to  remain,  Vogel  v.  City  of  New  York,  92  N.  Y.  10,  44  Am.  Rep. 

CHASE  (2o  ED.) — 39 


J10  LAW  OF  TORTS. 

349;  Khron  v.  Brock,  144  Mass.  516,  11  N.  E.  748;  [d]  where  the  employer  is 
under  an  absolute  legal  duty  to  have  a  certain  thing  done,  or  done  in  a  cer- 
tain way,  and  entrusts  its  performance  to  a  contractor  who  neglects  or  fails 
to  perform  it  as  required,  as,  e.  g.,  where  the  duty  is  to  have  the  public  high- 
way kept  in  a  safe  condition  for  travel,  Deming  v.  Terminal  Railway,  169  N. 
Y.  1,  61  N.  E.  983 ;  Hughes  v.  Percival,  L.  R.  8  App.  Cas.  443 ;  City  &  S.  R. 
Co.  v.  Moores,  80  Md.  348,  30  Atl.  643,  45  Am.  St.  Rep.  345 ;  City  of  Chicago 
v.  Robbins,  2  Black,  418,  17  L.  Ed.  298.  In  some  jurisdictions  a  further  excep- 
tion is  established,  viz.,  [e]  where  a  contractor  is  employed  to  do  work  which 
from  its  nature  is  likely  to  cause  danger  to  others  unless  guarded  against, 
the  employer  is  liable  if  a  person  is  injured  because  the  contractor  fails  to 
rake  reasonable  precautions  against  such  danger.  Penny  v.  Wimbledon  Coun- 
cil [1899]  2  Q.  B.  72;  Covington  &  C.  Bridge  Co.  v.  Ste.inbrock,  61  Ohio  St. 
215.  55  N.  E.  618,  76  Am.  St.  Rep.  375 ;  Wetherbee  v.  Partridge,  175  Mass.  185, 
55  N.  E.  894,  78  Am.  St.  Rep.  486 ;  Woodman  T.  Metropolitan  R.  Co.,  149  Mass 
335,  21  N.  E.  482,  4  L.  R.  A.  213,  14  Am.  St.  Rep.  427.) 


VI.  LIABILITY  OF  MASTER  TO  HIS  SERVANT. 

(99  N.  Y.  368,  2  N.  E.  24.) 

PANTZAR  v.  TILLY  FOSTER  MIN.  CO. 

(Court  of  Appeals  of  New  York.     June  9,  1885.) 

1.  MASTER  AND  SERVANT— NEGLIGENCE  OF  VICE-PRINCIPAL. 

A  master  must  exercise  reasonable  care  to  provide  for  his  servant  suit- 
able tools  and  implements,  a  proper  place  to  work  in,  competent  fellow 
workmen,  when  needed,  etc.,  and  cannot  delegate  the  performance  of  these 
duties  to  a  superintendent  or  other  employee,  so  as  to  exonerate  himself 
from  liability  to  a  servant  who  has  been  injured  by  their  non-performance. 

2.  SAME — ASSUMPTION  OF  RISK  OF  SERVICE. 

The  rule  that  the  servant  takes  the  risk  of  the  service  presupposes  that 
the  master  has  performed  the  duties  of  care,  caution,  and  vigilance  which 
the  law  casts  upon  him. 

8.  SAME. 

Plaintiff  while  employed  In  defendant's  mine  in  constructing  a  wall 
was  injured  by  the  fall  of  a  mass  of  rock  from  an  overhanging  cliff.  Therp 
was  evidence,  on  the  trial  of  his  action  to  recover  for  such  injuries,  that 
a  seam  had  been  discovered  in  the  cliff  where  the  rock  broke  off,  which 
defendant's  superintendent  had  knowledge  was  increasing  in  width,  that 
it  would  have  been  practicable  to  support  such  rock,  that  plaintiff  had  no 
knowledge  of  the  danger,  and  that  the  superintendent  did  not  take  proper 
precautions  to  protect  the  workmen  from  injury  from  this  cause.  Held, 
that  a  verdict  for  plaintiff  should  not  be  disturbed. 

Appeal  from  Supreme  Court,  General  Term,  First  Department. 

Action  by  Gustav  Pantzar  against  the  Tilly  Foster  Iron  Mining  Com- 
pany for  injuries  alleged  to  have  been  caused  by  negligence  of  defend- 
ant. Verdict  and  judgment  for  plaintiff.  On  appeal  to  the  general 
term  the  judgment  was  affirmed.  Defendant  again  appealed. 


NEGLIGENCE.  611 

RUGER,  C.  J.  The  general  principles  upon  which  this  action  de- 
pends have  been  so  frequently  discussed  in  recent  cases  that  anything 
more  than  a  brief  summary  would  be  unprofitable.  Thus  it  has  been 
held  that  a  master  owes  the  duty  to  his  servant  of  furnishing  adequate 
and  suitable  tools  and  implements  for  his  use,  a  safe  and  proper  place 
in  which  to  prosecute  his  work,  and,  when  they  are  needed,  the  em- 
ployment of  skillful  and  competent  workmen  to  direct  his  labor  and  as- 
sist in  the  performance  of  his  duties.  Coal  Co.  v.  Reid,  3  Macq.  275 ; 
Laning  v.  Railroad  Co.,  49  N.  Y.  522,  10  Am.  Rep.  447;  Brydon  v. 
Stewart,  2  Macq.  34 ;  Booth  v.  Railroad  Co.,  73  N.  Y.  40,  29  Am.  Rep. 
97.  That  "no  duty  belonging  to  the  master  to  perform  for  the  safety 
and  protection  of  his  servants  can  be  delegated  to  any  servant  of  any 
grade  so  as  to  exonerate  the  master  from  responsibility  to  a  servant 
who  has  been  injured  by  its  non-performance."  Mann  v.  President,  etc., 
91  N.  Y.  500 ;  Booth  v.  Railroad  Co.,  supra.  And  that,  when  the  gen- 
eral management  and  control  of  an  industrial  enterprise  or  establish- 
ment is  delegated  to  a  superintendent,  with  power  to  hire  and  discharge 
servants,  to  direct  their  labors  and  obtain  and  employ  suitable  means 
and  appliances  for  the  conduct  of  the  business,  such  superintendent 
stands  in  the  place  of  the  master,  and  his  neglect  to  adopt  all  reasonable 
means  and  precautions  to  provide  for  the  safety  of  the  employees  con- 
stitutes an  omission  of  duty  on  the  part  of  the  master,  rendering  him 
liable  for  any  injury  occurring  to  the  servant  therefrom.  Corcoran  v. 
Holbrook,  59  N.  Y.  517,  17  Am.  Rep.  367. 

The  case  shows  that  the  defendant  was  the  owner  of  a  coal  mine  in 
Putnam  county,  New  York,  conducted  under  the  management  of  a 
superintendent.  He  was  invested  by  them  with  full  power  of  control 
over  the  same,  and  ample  discretion  and  authority  in  directing  the  work, 
and  using  all  suitable  measures  and  precautions  for  carrying  on  the  busi- 
ness of  mining,  and  securing  the  safety  of  the  workmen  employed  in  the 
prosecution  of  the  enterprise. 

The  action  under  review  was  brought  by  a  servant  of  the  defendant 
to  recover  damages  for  personal  injuries  received  by  him  through  the 
fall  of  a  mass  of  rock,  while  working  in  a  pit  in  which  the  mining  opera- 
tions in  question  were  carried  on.  The  plaintiff,  at  the  time  of  the  ac 
cident,  was  upon  a  wall  in  the  course  of  construction  for  the  purpose 
of  furnishing  a  place  behind  which  to  deposit  the  refuse  material  of 
the  mine,  and,  as  claimed  by  defendant,  also  with  a  view  of  supporting 
the  overhanging  cliff  from  which  the  rock  injuring  plaintiff  fell.  At 
the  time  of  the  accident  this  wall  had  been  raised  to  the  height  of  about 
60  feet,  and  was  still  some  50  feet  below  the  surface  of  the  ground. 
While  thus  engaged  with  a  number  of  other  workmen  a  large  mass  was 
detached,  and  fell  from  the  brow  of  the  projecting  cliff  under  which  the 
work  was  in  progress,  and  caused  the  death  of  some,  and  the  serious 
injury  of  others,  among  whom  was  the  plaintiff. 


612  LAW   OF  TOUTS. 

* 

The  evidence  as  to  the  condition  of  the  rock  at  the  time  of  the  acci- 
dent was  conflicting,  and  raised  questions  of  fact  peculiarly  within  the 
province  of  the  jury  to  determine.  On  the  part  of  the  defendant  it 
tended  to  show  that  the  cliff  was  composed  of  gneiss,  a  mineral  natur- 
ally marked  by  seams,  joints,  and  foliations,  and  that  it  was  in  the  fre- 
quent and  continued  habit  of  causing  it  to  be  examined  for  the  purpose 
of  discovering,  if  possible,  appearances  indicating  any  immediate  dan- 
ger, and  that  no  such  indications  had  been  observed  before  the  accident. 

On  the  other  hand,  the  plaintiff's  evidence  showed  that  a  large  crack 
parallel  with,  and  about  10  feet  back  from,  the  upper  angle  of  the  face 
of  the  cliff  had  long  existed  and  was  plainly  visible ;  that  the  attention 
of  the  superintendent  and  foreman  had  been  called  to  it,  and  they  were 
warned  of  its  dangerous  character ;  that  they  had  instituted  an  experi- 
ment to  determine  whether  it  was  growing  or  not,  "and  that  such  experi- 
ment did  show  that  it  was  increasing  in  width,  and  still  they  took  no 
precautions  to  support  the  rock  while  the  workmen  were  engaged  under 
it,  although  such  precautions  were  practicable,  and  frequently  adopted 
in  other  mines.  In  some  cases,  braces  of  timbers,  extending  across 
from  the  side  of  the  pit  to  the  rock  liable  to  fall,  were  used,  and  in  others 
the  overhanging  rock  had  been  blasted  off.  It  was  also  shown  that  a 
wall  such  as  that  in  process  of  construction  would,  when  completed, 
have  furnished  a  support  to  the  projecting  mass.  The  plaintiff's  evi- 
dence also  tended  to  show  that  the  rock  broke  off  at  the  place  where  the 
crack  had  been  observed,  and  that  with  the  fall  the  crack  disappeared. 
It  must  therefore  be  assumed,  from  the  verdict  of  the  jury,  that  it  was 
determined  that  the  rock  fell  from  a  cause  of  which  the  defendant  had 
notice,  and  that  precautions  which  would  have  prevented  the  injury  were 
not  adopted,  although  they  were  practicable,  and  of  easy  and  safe  ap- 
plication. 

The  evidence  tended  to  show  that  the  wall  then  in  course  of  construc- 
tion was  not  a  safe  and  suitable  protection  for  the  laborers  engaged  in 
working  upon  it.  It  obviously  required  a  long  time  to  complete  it, 
and  its  main  design  seemed  to  be  to  furnish  a  place  for  the  deposit  of 
refuse  material.  During  the  course  of  its  erection  it  certainly  afforded 
no  protection  to_ those  working  below  the  cliff,  and  the  jury  was  author- 
ized to  infer,  from  the  fact  that  it  was  not  completed  after  the  lapse  of 
several  years,  that  it  was  not  originally  designed  as  a  means  of  present 
protection  from  the  dangers  of  falling  rock.  The  degree  of  vigilance 
and  care  required  of  a  master  in  the  adoption  of  means  of  protection 
towards  his  servants  has  been  much  discussed  by  elementary  writers, 
as  well  as  in  reported  cases,  and  the  conclusions  reached,  applicable  to 
such  a  case  as  the  present,  are  not  disputed.  To  accept  the  rule  ex- 
tracted from  Leonard  v.  Collins,  70  N.  Y.  90,  and  adopted  in  the  ap- 
pellant's brief,  is  to  inquire  whether  "the  master  did  everything  which, 
in  the  exercise  of  reasonable  and  ordinary  care  and  prudence,  he  ought 
to  have  done."  "Did  he  omit  any  precaution  which  a  prudent  and 


NEGLIGENCE.  613 

careful  man  would  take,  or  ought  to  have  taken  ?"  It  is  difficult  to  see 
how  the  defendant  can  claim  exemption  from  liability. 

But  one  exception  was  taken  by  the  defendant  in  the  case,  and  that 
was  to  the  denial  by  the  court  of  its  motion  to  nonsuit  at  the  close  of  the 
plaintiff's  evidence.  It  might  very  well  be  said  that  the  broad  question 
argued  before  us  by  the  learned  counsel  for  the  defendant  was  not  prop- 
erly in  the  case,  as  it  was  based,  to  some  extent,  upon  evidence  given 
subsequent  to  the  taking  of  the  exception.  But  as  we  think  the  judg- 
ment must,  in  any  event,  be  affirmed,  no  injustice  is  done  the  plaintiff  by 
considering  all  of  the  evidence  taken  on  the  trial  in  determining  the 
validity  of  this  exception. 

The  motion  for  a  nonsuit  was  placed  upon  grounds  stated  con- 
cisely as  follows :  (i)  That  the  accident  causing  plaintiff's  injury  was- 
incident  to  the  hazardous  nature  of  his  employment,  and  from  a  risk 
assumed  by  him  on  entering  upon  it.  (2)  That  it  did  not  occur  through 
an  omission  on  the  part  of  the  defendant  or  its  agents  to  perform  any 
duty  which  it  owed  to  the  plaintiff.  (3)  That  there  being  no  proof  of 
the  incompetency  of  the  superintendent,  when  originally  employed, 
the  defendant  was  not  liable  for  an  accident  caused  through  an  omission 
of  duty  on  his  part  causing  injury  to  a  fellow  servant.  It  may  be  said, 
with  reference  to  the  ground  last  stated,  that  it  is  disposed  of  by  ref- 
erence to  the  general  proposition  laid  down  at  the  outset  of  this  opin- 
ion, and  the  other  grounds  involved  questions  of  fact  upon  which  the 
evidence  was  quite  sufficient  to  take  the  case  to  the  jury.  The  motion 
assumes  that  the  injury  to  the  plaintiff  occurred  solely  from  a  hazard 
incident  to  the  nature  of  the  employment,  and  not  from  a  cause  which 
could  have  been  foreseen  and  guarded  against  by  the  exercise  of  proper 
care  and  prudence  on  the  part  of  the  master.  This,  however,  was  the 
very  question  which  was  disputed  before  the  jury  and  decided  by  it  ad- 
versely to  the  appellant. 

The  defendant's  contention  is  based  upon  the  evidence  showing  that 
it  is  the  nature  of  gneiss  rock  to  disintegrate  and  fall  from  time  to  time 
at  unexpected  intervals,  through  the  action  of  the  elements  operating 
upon  it ;  but  it  does  not  follow  from  this  fact  that  the  master  is  excused 
from  using  proper  precautions  to  protect  his  workmen  from  danger 
known  to  the  master  arising  from  such  a  cause.  The  very  fact  that  the 
material  was  likely  to  fall  upon  and  injure  the  defendant's  servants  at 
unexpected  times  imposed  upon  defendant  the  duty  of  inspection,  and 
frequent  and  careful  examinations,  and  upon  the  discovery  of  any  indi- 
cations of  danger,  to  adopt  all  suitable  precautions  to  protect  its  serv- 
ants from  injury.  The  rule  that  the  servant  takes  the  risk  of  the  serv- 
ice presupposes  that  the  master  has  performed  the  duties  of  caution, 
care,  and  vigilance,  which  the  law  casts  upon  him.  Booth  v.  Railroad 
Co.,  supra.  It  is  those  risks  alone  which  cannot  be  obviated  by  the 
adoption  of  a  reasonable  measure  of  precaution  by  the  master  that  the 
servant  assumes.  It  was  for  an  omission  to  observe  the  dangerous 


614  LAW  OF  TORTS. 

» 

appearances  to  which  the  evidence  shows  its  attention  had  been  called, 
and  its  neglect  to  adopt  suitable  and  proper  means  of  protection,  that  the 
defendant  has  been  held  liable  by  the  jury.  The  evidence  tends  to 
show  that  the  plaintiff  was  ignorant  of  the  dangerous  condition  of  the 
rock,  and  that  his  duties  did  not  call  him  to  any  place  from  which  it 
could  be  observed.  He  therefore  had  a  right  to  rely  upon  the  perform- 
ance of  the  duty  owing  by  the  master,  of  adopting  proper  and  suitable 
measures  of  precaution  to  guard  him  against  the  consequence  of  any 
danger  arising  from  the  obviously  unsafe  condition  of  the  rock,  and  is 
not  justly  censurable  for  an  omission  to  discover  the  impending  danger 
himself  in  time  to  avoid  it.  The  master,  however,  had  notice  that  the 
rock  was  in  motion,  and  was  liable  to  fall  at  any  moment,  and  was  there- 
fore chargeable  with  the  duty,  in  the  exercise  of  reasonable  care  and 
prudence,  of  taking  immediate  steps  to  avoid  the  danger,  and  of  warn- 
ing the  men  working  under  it  of  the  hazard  to  which  they  were  exposed. 

We  therefore  think  that  there  was  evidence  sustaining  the  verdict 
of  the  jury,  and  that  the  judgment  should  be  affirmed. 

All  concur. 

Judgment  affirmed. 

(See  also  Choctaw,  O.  &  G.  R.  Co.  v.  McDade,  191  U.  S.  64,  24  Sup.  Ct.  24, 
48  L.  Ed.  96;  Union  Pac.  R.  Co.  v.  O'Brien,  161  U.  S.  451,  16  Sup.  Ct.  618, 
40  L.  Ed.  766 ;  Northern  Pac.  R.  Co.  v.  Herbert,  116  U.  S.  642,  6  Sup.  Ct.  590, 
29  L.  Ed.  755 ;  Hough  v.  Railway  Co.,  100  U.  S.  213,  25  L.  Ed.  612 ;  Benzing  v. 
Steinway,  101  N.  Y.  547,  5  N.  E.  449;  Stringlmm  v.  Hilton,  1U  N.  Y.  188,  18  N. 
E.  870,  1  L.  R.  A.  483 ;  Tuttle  v.  Railway,  122  U.  S.  189,  7  Sup.  Ct  1166,  30 
L.  Ed.  1114;  Hayden  v.  Manufacturing  Co.,  29  Conn.  548;  Yeaton  v.  Rail- 
road Corp.,  135  Mass.  418 ;  Washington  &  G.  R.  Co.  v.  McDade,  135  U.  S.  554, 

10  Sup.  Ct.  1044,  34  L.  Ed.  235 ;    Rogers  v.  Manufacturing  Co.,  144  Mass.  198, 

11  N.  E.  77,  59  Am.  Rep.  68;    Buzzell  v.  Manufacturing  Co.,  48  Me.  113,  77 
Am.  Dec.  212.     "The  question  who  are  fellow  servants,  within  the  rule  ex- 
empting the  employer  from  the  consequences  of  the  negligence  of  fellow  serv- 
ants, is  not  ordinarily  determined  by  rank  or  grade  of  service,  but  by  the 
•character  of  the  service  performed  or  acts  complained  of.    As  a  general  rule, 
those  doing  the  work  of  a  servant  are  fellow  servants,  whatever  their  grade 
of  service ;    and  a  servant,  of  whatever  rank,  charged  with  the  performance 
of  the  master's  duty  towards  his  servants,  is,  as  to  the  discharge  of  that  duty, 
a  vice  principal,  for  whose  acts  and  neglects  the  master  is  responsible,  be- 
cause he  has  invested  him  with  the  responsibility  of  doing  that  which  the  mas- 
ter is  bound  to  have  carefully  performed."     Jacques  v.  Great  Falls  Mfg.  Co., 
G6  N.  H.  482,  22  Atl.  552,  13  L.  R.  A.  824 ;    Hankins  v.  New  York,  L.  E.  &  W. 
R.  Co.,  142  N.  Y.  416,  37  N.  E.  466,  25  L.  R.  A.  396,  40  Am.  St.  Rep.  616; 
Moynihan  v.  Hills  Co.,  146  Mass.  586,  593,  16  N.  E.  574,  4  Am.  St.  Rep.  348; 
Davis  v.  Railroad  Co.,  55  Vt  84,  45  Am.  Rep.  590 ;   Union  Pac.  R.  Co.  v.  Dan- 
iels, 152  U.  S.  684,  14  Sup.  Ct  756,  38  L.  Ed.  51)7.) 


NEGLIGENCE.  615 

(100  U.  S.  213,  25  L.  Ed.  612.) 

HOUGH  v.  TEXAS  &  P.  RY.  CO.  (in  part). 

(Supreme  Court  of  the  United  States.    October  Term,  1879.) 

1.  CONTRIBUTOBY   NEGLIGENCE— ASSUMPTION    OF   RlSK— PROMISE   TO    REPAIB. 

Where  a  master  has  expressly  promised  to  repair  a  defect  in  machinery 
used  by  a  servant,  the  servant  can  recover  for  an  injury  caused  thereby, 
within  such  a  period  of  time  after  the  promise  as  it  would  be  reasonable 
to  allow  for  its  performance. 

2.  SAME. 

The  mere  fact  that  an  engineer  used  a  locomotive  when  he  knew  the 
cowcatcher  was  insecurely  fastened  was  not  conclusive  of  want  of  due 
care  on  his  part,  where  he  had  notified  his  master  of  the  defect,  and  con- 
tinued to  use  it  only  on  assurances  being  given  that  it  would  be  reme- 
died. 

Error  to  the  Circuit  Court  of  the  United  States  for  the  Western  Dis- 
trict of  Texas. 

The  facts  are  stated  in  the  opinion  of  the  court, 

Mr.  Justice  HARLAN  delivered  the  opinion  of  the  Court. 

Plaintiffs  in  error,  the  widow  and  child  of  W.  C.  Hough,  deceased, 
seek  in  this  action  to  recover  against  the  Texas  &  Pacific  Railway  Com- 
pany damages,  compensatory  and  exemplary,  on  account  of  his  death, 
which  occurred  in  1874,  while  he  was  in  its  employment  as  an  engineer. 

In  substance,  the  case  is  this : 

The  evidence  in  behalf  of  the  plaintiffs  tended  to  show  that  the 
engine  of  which  deceased  had  charge,  coming  in  contact  with  an  animal, 
was  thrown  from  the  track,  over  an  embankment,  whereby  the  whistle, 
fastened  to  the  boiler,  was  blown  or  knocked  out,  and  from  the  opening 
thus  made  hot  water  and  steam  issued,  scalding  the  deceased  to  death ; 
that  the  engine  was  thrown  from  the  track  because  the  cow-catcher  or 
pilot  was  defective,  and  the  whistle  blown  or  knocked  out  because  it  was 
insecurely  fastened  to  the  boiler ;  that  these  defects  were  owing  to  the 
negligence  of  the  company's  master-mechanic,  and  of  the  foreman  of 
the  round-house  at  Marshall;  that  to  the  former  was  committed  the 
exclusive  management  of  the  motive-power  of  defendant's  line,  with  full 
control  over  all  engineers,  and  with  unrestricted  power  to  employ,  di- 
rect, control,  and  discharge  them  at  pleasure;  that  all  engineers  were 
required  to  report  for  orders  to  those  officers,  and  under  their  direc- 
tions alone  could  engines  go  out  upon  the  road ;  that  deceased  knew  of 
the  defective  condition  of  the  cow-catcher  or  pilot,  and,  having  com- 
plained thereof  to  both  the  master-mechanic  and  foreman  of  the  round- 
house, he  was  promised  a  number  of  times  that  the  defect  should  be 
remedied,  but  such  promises  were  not  kept;  that  a  new  pilot  was  made, 
but,  by  reason  of  the  negligence  of  those  officers,  it  was  not  put  on  the 


616  LAW  OF  TORTS. 

* 

engine.     [After  discussing  other  questions,  the  court  proceeds  as  fol- 
lows :] 

One  other  question,  arising  upon  the  instructions,  and  which  has  been 
discussed,  with  some  fulness,  by  counsel,  deserves  notice  at  our  hands. 
It  is  contended  by  counsel  that  the  engineer  was  guilty  of  such  con- 
tributory negligence  as  to  prevent  the  plaintiffs  from  recovering.  The 
instruction  upon  that  branch  of  the  case  was  misleading  and  erroneous. 

The  defect  in  the  engine,  of  which  the  engineer  had  knowledge,  was 
that  which  existed  in  the  cow-catcher  or  pilot.  It  is  not  claimed  that 
he  was  aware  of  the  insufficient  fastening  of  the  whistle,  or  that  the  de- 
fect, if  any,  in  that  respect,  was  of  such  a  character  that  he  should  have 
become  advised  of  it  while  using  the  engine  on  the  road.  But  he  did 
have  knowledge  of  the  defective  condition  of  the  cow-catcher  or  pilot, 
and  complained  thereof  to  both  the  master-mechanic  and  the  fore- 
man of  the  round-house.  They  promised  that  it  should  be  promptly 
remedied,  and  it  may  be  that  he  continued  to  use  the  engine  in  the  belief 
that  the  defect  would  be  removed.  The  court  below  seem  to  attach 
no  consequence  to  the  complaint  made  by  the  engineer,  followed,  as  it 
was,  by  explicit  assurances  that  the  defect  should  be  remedied.  Accord- 
ing to  the  instructions,  if  the  engineer  used  the  engine  with  knowledge 
of  the  defect,  the  jury  should  find  for  the  company,  although  he  may 
have  been  justified  in  relying  upon  those  assurances. 

If  the  engineer,  after  discovering  or  recognizing  the  defective  condi- 
tion of  the  cow-catcher  or  pilot,  had  continued  to  use  the  engine,  with- 
out giving  notice  thereof  to  the  proper  officers  of  the  company,  he  would 
undoubtedly  have  been  guilty  of  such  contributory  negligence  as  to  bar 
a  recovery,  so  far  as  such  defect  was  found  to  have  been  the  efficient 
cause  of  the  death.  He  would  be  held,  in  that  case,  to  have  himself 
risked  the  dangers  which  might  result  from  the  use  of  the  engine  in 
such  defective  condition.  But  "there  can  be  no  doubt  that,  where  a 
master  has  expressly  promised  to  repair  a  defect,  the  servant  can  recover 
for  an  injury  caused  thereby,  within  such  a  period  of  time  after  the 
promise  as  it  would  be  reasonable  to  allow  for  its  performance,  and,  as 
we  think,  for  an  injury  suffered  within  any  period  which  would  not  pre- 
clude all  reasonable  expectation  that  the  promise  might  be  kept." 
Shearman  &  Redf.  Negligence,  sect.  96;  Conroy  v.  Vulcan  Iron  Works, 
62  Mo.  35 ;  Patterson  v.  P.  &  C.  R.  Co.,  76  Pa.  389,  18  Am.  Rep.  412 ; 
Le  Clair  v.  First  Division  of  St.  Paul  &  P.  R.  Co.,  20  Minn.  9,  (Gil.  1) ; 
Brabbits  v.  Railway  Co.,  38  Wis.  289.  "If  the  servant,"  says  Mr. 
Cooley,  in  his  work  on  Torts,  559,  "having  a  right  to  abandon  the  serv- 
ice because  it  is  dangerous,  refrains  from  doing  so  in  consequence  of 
assurances  that  the  danger  shall  be  removed,  the  duty  to  remove  the 
danger  is  manifest  and  imperative,  and  the  master  is  not  in  the  exercise 
of  ordinary  care  unless  or  until  he  makes  his  assurances  good.  More- 
over, the  assurances  remove  all  ground  for  the  argument  that  the  serv- 
ant by  continuing  the  employment  engages  to  assume  the  risks." 


NEGLIGENCE.  617 

And  such  seems  to  be  the  rule  recognized  in  the  English  courts. 
Holmes  v.  Worthington,  2  Fos.  &  Fin.  533;  Holmes  v.  Clarke,  6  H. 
&  N.  937;  Clarke  v.  Holmes,  7  H.  &  N.  937.  We  may  add,  that  it 
was  for  the  jury  to  say  whether  the  defect  in  the  cow-catcher  or  pilot 
was  such  that  none  but  a  reckless  engineer,  utterly  careless  of  his 
safety,  would  have  used  the  engine  without  it  being  removed.  If, 
under  all  the  circumstances,  and  in  view  of  the  promises  to  remedy  the 
defect,  the  engineer  was  not  wanting  in  due  care  in  continuing  to  use 
the  engine,  then  the  company  will  not  be  excused  for  the  omission  to 
supply  proper  machinery,  upon  the  ground  of  contributory  negligence. 
That  the  engineer  knew  of  the  alleged  defect  was  not,  under  the  cir- 
cumstances, and  as  matter  of  law,  absolutely  conclusive  of  want  of  due 
care  on  his  part.  Ford  v.  Fitchburg  R.  Co.,  no  Mass.  261,  14  Am. 
Rep.  598;  Laning  v.  New  York  Cent.  R.  Co.,  49  N.  Y.  521,  10  Am. 
Rep.  417. 

Judgment  reversed,  and  new  trial  ordered. 

(This  doctrine  is  now  quite  generally  accepted.  Rice  v.  Eureka  Paper  Co., 
174  N.  T.  385,  66  N.  E.  979,  62  L.  R.  A.  611,  95  Am,  St.  Rep.  585  [collecting 
the  authorities] ;  Schlitz  v.  Pabst  Brewing  Co.,  57  Minn.  303,  59  N.  W.  188.) 


(5  Best  &  S.  570,  L.  R.  1  Q.  B.  149.) 
MORGAN  v.  VALE  OF  NEATH  RY.  CO. 

(Court  of  Queen's  Bench.    July  4,  1864.    Exchequer  Chamber.    November  27, 

1865.) 

1.  MASTEB  AND  SEBVANT— NEGLIGENCE  OF  FELLOW -SERVANT— WHO  ABE  FEL- 

LOW SEBVANTS. 

The  rule  which  exempts  a  master  from  liability  to  a  servant  for  injury 
caused  by  the  negligence  of  a  fellow-servant  applies  in  cases  where,  al- 
though the  immediate  object  on  which  the  one  servant  is  employed  is 
very  dissimilar  from  that  on  which  the  other  is  employed,  yet  the  risk 
of  injury  from  the  negligence  of  the  one  is  so  much  a  natural  and  nec- 
essary consequence  of  the  employment  which  the  other  accepts,  that  it 
must  be  included  in  the  risks  which  have  to  be  considered  in  his  wages. 

2.  SAME— RAILBOAD  COMPANIES. 

Wherever  an  employment  in  the  service  of  a  railway  company  is  such 
as  necessarily  to  bring  the  person  accepting  it  into  contact  with  the 
traffic  of  the  line,  risk  of  injury  from  the  carelessness  of  those  managing 
the  traffic  is  one  of  the  risks  necessarily  and  naturally  incident  to  such 
employment,  and  within  the  rule. 

3.  SAME. 

The  plaintiff  was  in  the  employment  of  a  railway  company  as  a  car- 
penter, to  do  any  carpenter's  work  for  the  general  purposes  of  the  com- 
pany. He  was  standing  on  a  scaffolding  at  work  on  a  shed  close  to  the 
line  of  the  railway,  while  some  porters  in  the  service  of  the  company 
carelessly  shifted  an  engine  on  a  turn-table  so  that  it  struck  a  ladder 
supporting  the  scaffold,  by  which  means  the  plaintiff  was  thrown  down 
and  injured.  Held,  on  the  above  principle,  that  the  company  was  not  lia- 
ble. 


618  LAW   OF   TOUTS. 

• 

Rule  nisi  to  enter  verdict  for  plaintiff  instead  of  a  nonsuit. 

Action  by  Morgan  against  the  Vale  of  Neath  Railway  Company  for 
injuries  alleged  to  have  been  sustained  by  defendant's  negligence. 
Plaintiff,  at  the  time  of  the  injury,  was  a  carpenter  in  defendant's  em- 
ploy at  weekly  wages.  The  duties  of  the  carpenters  in  the  employment 
of  the  company  were  to  perform  all  the  carpenter's  work  they  might 
be  directed  to  do  by  the  inspector  of  the  line  for  the  general  purposes  of 
the  company.  The  court  nonsuited  plaintiff,  but  gave  him  leave  to 
move  to  enter  a  verdict  in  his  favor  for  an  agreed  sum.  A  rule  nisi 
was  accordingly  obtained  on  the  ground  that  there  was  no  common 
employment,  such  as  to  exempt  defendants  from  liability. 

BLACKBURN,  J.  In  this  case  the  plaintiff  was  employed  by  the 
defendants  as  their  servant  to  do  work  as  a  carpenter  on  their  station 
while  the  railway  traffic  was  being  carried  on  in  it  by  the  servants  of 
the  defendants.  In  the  course  of  this  employment  he  was  standing  up- 
on a  scaffold  which  was  erected  near  to  one  of  the  turn-tables.  The 
servants  of  the  defendants,  who  were  engaged  in  shifting  a  locomotive 
engine,  allowed  it  to  project  so  far  beyond  the  turn-table  that,  in  turn- 
ing, the  end  of  the  engine  struck  against  a  ladder  which  constituted  one 
of  the  supports  of  the  scaffold.  The  scaffold  gave  way  in  consequence, 
and  the  plaintiff  was  thrown  off  and  injured.  The  plaintiff  was  non- 
suited, with  leave  to  move  to  enter  a  verdict  for  the  plaintiff. 

It  must  be  taken  to  have  been  proved  at  the  trial  that  there  was  negli- 
gence on  the  part  of  those  shifting  the  engine,  and  no  contributing  negli- 
gence on  the  part  of  the  plaintiff,  so  that  the  plaintiff  might  have  main- 
tained an  action  against  those  actually  shifting  the  engine,  and  also 
against  their  masters,  the  defendants,  unless  the  fact  that  the  plaintiff 
was  also  the  servant  of  the  defendants  forms  a  defense ;  and  the  ques- 
tion of  law  reserved  must  be  taken  to  be  whether  the  nature  of  the 
plaintiff's  employment  was  such  as  to  make  him  and  the  servants,  by 
whose  negligence  he  suffered,  servants  in  a  common  employment,  or, 
as  it  is  sometimes  called,  "collaborateurs,"  within  the  rule  which  ex- 
empts the  employer  from  responsibility  to  his  servant  for  the  conse- 
quences of  the  negligence  of  a  servant  in  a  common  employment. 

I  am  of  opinion  that  this  rule  ought  to  be  discharged,  as  I  think  that 
the  facts  bring  the  case  within  the  principle  of  the  class  of  cases  of  which 
Hutchinson  v.  Railway  Co.,  5  Exch.  343,  was  the  first  decided  in  an  En- 
glish court,  but  which  had  previously  been  acted  upon  in  America  in  the 
case  of  Farwell  v.  Railroad  Corp.,  4  Mete.  (Mass.)  49,  38  Am.  Dec.  339, 
also  printed  in  3  Macq.  316.  That  principle  I  take  to  be  that  a  servant, 
who  engages  for  the  performance  of  services  for  compensation,  does,  as 
an  implied  part  of  the  contract,  take  upon  himself,  as  between  himself 
and  his  master,  the  natural  risks  and  perils  incident  to  the  performance 
of  such  services;  the  presumption  of  law  being  that  the  compensation 
was  adjusted  accordingly,  or,  in  other  words,  that  these  risks  are  con- 


NEGLIGENCE.  619 

sidered  in  his  wages ;  and  that  where  the  nature  of  the  service  is  such 
that,  as  a  natural  incident  to  that  service,  the  person  undertaking  it 
must  be  exposed  to  risk  of  injury  from  the  negligence  of  other  servants 
of  the  same  employer,  this  risk  is  one  of  the  natural  perils  which  the 
servant  by  his  contract  takes  upon  himself  as  between  him  and  his 
master;  and  consequently  that  he  cannot  recover  against  his  master 
for  an  injury  so  caused,  because,  as  is  said  by  Shaw,  C.  J.  in  Farwell  v. 
Railroad  Corp.,  he  "does  not  stand  towards  him  in  the  relation  of  a 
stranger,  but  is  one  whose  rights  are  regulated  by  contract,  expressed  or 
implied." 

If  the  master  has,  by  his  own  personal  negligence  or  malfeasance, 
enhanced  the  risk  to  which  the  servant  is  exposed  beyond  those  natural 
risks  of  the  employment  which  must  be  presumed  to  have  been  in  con- 
templation when  the  employment  was  accepted,  as,  for  instance,  by 
knowingly  employing  incompetent  servants,  or  supplying  defective 
machinery,  or  the  like,  no  defense  founded  on  this  principle  can  apply ; 
for  the  servant  does  not,  as  an  implied  part  of  his  contract,  take  upon 
himself  any  other  risks  than  those  naturally  incident  to  the  employment. 

No  such  point,  however,  arises  in  the  present  case.  It  was  not  sug- 
gested that  the  defendants  negligently  employed  servants  to  manage 
their  traffic  who  were  not*  competent  to  do  so,  nor  that  the  turn-tables 
were  improperly  made.  The  one  point  made  was  that  the  plaintiff,  who 
was  employed  to  do  carpenter's  work  on  the  station,  was  not  employed 
in  the  same  work  as  those  who  were  employed  in  working  the  railway 
traffic;  and  it  was  contended  that  it  was  essential  that  the  servants 
should  be  in  a  common  employment,  and  working  for  a  common  ob- 
ject. I  quite  agree  that  it  is  necessary  that  their  employment  must  be 
common  in  this  sense:  that  the  safety  of  one  servant  must,  in  the 
ordinary  and  natural  course  of  things,  depend  on  the  care  and  skill 
of  the  others.  This  includes  almost  if  not  every  case  in  which  the 
servants  are  employed  to  do  joint  work,  but  I  do  not  think  it  is  limited 
to  such  cases.  There  are  many  cases  where  the  immediate  object  on 
which  the  one  servant  is  employed  is  very  dissimilar  from  that  on  which 
the  other  is  employed,  and  yet  the  risk  of  injury  from  the  negligence  of 
the  one  is  so  much  a  natural  and  necessary  consequence  of  the  employ- 
ment which  the  other  accepts  that  it  must  be  included  in  the  risks  which 
are  to  be  considered  in  his  wages.  I  think  that,  whenever  the  employ- 
ment is  such  as  necessarily  to  bring  the  person  accepting  it  into  con- 
tact with  the  traffic  of  the  line  of  railway,  risk  of  injury  from  the  care- 
lessness of  those  managing  that  traffic  is  one  of  the  risks  necessarily  and 
naturally  incident  to  such  an  employment,  and  within  the  rule. 

In  Hutchinson  v.  Railway  Co.,  5  Exch.  343,  the  company's  servant, 
who  went  as  their  servant  in  one  of  their  trains,  was,  as  one  of  the 
necessary  and  ordinary  consequences  of  so  doing,  exposed  to  risk  of  in- 
jury from  the  negligence  of  those  who  worked  the  traffic ;  and  the  judg- 
ment of  the  court  of  exchequer,  that  his  representatives  could  not  re- 


G20  LAW  OF  TORTS. 

• 

cover  against  the  company  for  his  death  caused  by  the  negligence  of 
their  servants  working  the  traffic,  was  on  the  principle  I  have  just  stated. 
His  death  was  held  to  be  caused  by  a  want  of  skill,  the  risk  of  which  the 
deceased  had,  as  between  himself  and  the  defendant,  agreed  to  run.  I 
think  it  would  be  difficult  to  show  that  Hutchinson,  and  those  who 
worked  the  train  which  ran  into  him,  were  engaged  in  any  common  serv- 
ice, in  any  sense  of  the  word  which  would  not  include  the  present  case. 
In  Coal  Co.  v.  McGuire,  3  Macq.  300,  Lord  Chelmsford,  C.,  in  com- 
menting on  the  cases  on  this  subject,  observes  (pages  301-308)  that  in 
them  "it  did  not  become  necessary  to  define  with  any  great  precision 
what  was  meant  by  the  words  'common  service'  or  'common  employ- 
ment,' and  perhaps  it  might  be  difficult  beforehand  to  suggest  any  ex- 
act definition  of  them.  It  is  necessary,  however,  in  each  particular 
case,  to  ascertain  whether  the  servants  are  fellow-laborers  in  the  same 
work;  because,  although  a  servant  may  be  taken  to  have  engaged  to1 
encounter  all  risks  which  are  incident  to  the  service  which  he  under- 
takes, yet  he  cannot  be  expected  to  anticipate  those  which  may  happen 
to  him  on  occasions  foreign  to  his  employment.  Where  servants, 
therefore,  are  engaged  in  different  departments  of  duty,  an  injury  com- 
mitted by  one  servant  upon  the  other,  by  carelessness  or  negligence 
in  the  course  of  his  peculiar  work,  is  not  within  the  exception,  and  the 
master's  liability  attaches  in  that  case  in  the  same  manner  as  if  the  in- 
jured servant  stood  in  no  such  relation  to  him.  There  may  be  some 
nicety  and  difficulty  in  particular  cases  in  deciding  whether  a  common 
employment  exists;  but  in  general,  by  keeping  in  view  what  the  serv- 
ant must  have  known  or  expected  to  have  been  involved  in  the  service 
which  he  undertakes,  a  satisfactory  conclusion  may  be  arrived  at." 
These  observations  were  made  in  a  case  in  which  the  house  of  lords  re- 
versed the  decision  of  the  Scotch  court  of  session,  who  had  held  that 
the  owners  of  the  colliery  were  responsible  to  the  miners  whom  they 
employed,  for  the  negligence  of  their  servant  employed  to  work  the 
engine  which  drew  them  up,  on  the  ground  that  they  were  not  servants 
employed  in  common  work.  All  the  law  lords,  in  delivering  their  opin- 
ions that  the  court  of  session  were'  wrong  in  this  decision,  concurred 
in  saying  that  there  was  no  inflexible  rule  of  law  releasing  the  master 
from  responsibility  in  every  case  where  the  person  injured  by  the 
negligence  of  his  servant  was  at  the  time  of  the  injury  in  the  same 
master's  service;  and  they  certainly  use  language  which,  like  part  of 
what  I  have  cited  from  Lord  Chelmsford's  opinion,  seems  to  point  to 
the  common  object  of  the  service  as  being  the  limit  of  the  rule;  but,  as 
was  observed  by  Lord  Chelmsford  himself  with  reference  to  the 
former  decision,  there  was  nothing  in  the  nature  of  the  case  before  them 
to  call  for  a  precise  definition  of  the  limit ;  it  was  only  necessary  to  de- 
cide that  the  case  before  them  fell  within  it.  I  think,  however,  the  prin- 
ciple which  I  consider  the  true  one  is  sufficiently  indicated  by  Lord 
Chelmsford  in  the  passage  I  have  just  quoted,  and  by  Lord  Crairivorth 


NEGLIGENCE.  021 

throughout  his  judgment  in  Coal"  Co.  v.  Reid,  3  Macq.  266.  In  Waller 
v.  Railway  Co.,  32  Law  J.  Exch.  205,  Pollock,  C.  B.,  in  his  judgment  re- 
fers to  the  observations  thrown  out  by  Lord  Chelmsford,  and  the  chief 
baron  in  effect  says  that,  in  order  to  decide  the  case  before  him,  he 
considers  what  are  the  dangers  which  any  servant  engages  to  encounter, 
and  look's  at  the  probable  dangers  attendant  upon  entering  the  engage- 
ment in  question.  This  I  think  the  true  principle,  and  that  the  diffi- 
culty is  to  apply  it  in  each  case. 

Applying  that  principle  to  the  case  before  them,  the  court  of  ex- 
chequer decided  that  a  guard  of  a  railway  train  had  taken  upon  himself 
the  risk  of  injury  from  the  negligence  of  the  servants  whose  duty  it  was 
to  see  that  the  rails  were  in  good  order.  And,  applying  the  same  prin- 
ciple to  the  present  case,  I  think  that  we  ought  to  hold  that  the  plaintiff, 
in  accepting  an  employment  to  work  in  the  station  while  the  traffic  was 
being  carried  on,  and  which  must  have  brought  him  close  to  the  traffic, 
accepted  one  which  necessarily  must  have  exposed  him  to  danger  from 
the  carelessness  of  those  conducting  the  traffic,  and  must  be  taken,  as 
between  himself  and  his  employers,  to  have  taken  upon  himself  that 
risk. 

COCKBURN,  C.  J.,  and  MELLOR,  J.,  concurred. 
Rule  discharged. 

On  appeal  to  the  exchequer  chamber,  the  following  opinions  were 
rendered : 

ERLE,  C.  J.  I  am  of  opinion  that  the  judgment  should  be  affirmed. 
The  plaintiff  was  employed  by  the  railway  company  to  do  carpenter's 
work,  and  he  was  so  employed  on  the  line  of  railway,  and  the  wrong- 
doers were  the  porters,  also  in  the  employment  of  the  company,  who, 
in  shifting  a  steam-engine  on  a  turn-table  close  to  the  shed  on  which 
the  plaintiff  was  working,  managed  the  business  so  negligently  that  the 
engine  struck  against  the  ladder  which  partly  supported  the  plaintiff's 
scaffolding,  and  threw  the  plaintiff  violently  to  the  ground.  The  plain- 
tiff and  the  porters  were  engaged  in  one  common  employment,  and  were 
doing  work  for  the  common  object  of  their  masters,  viz.,  fitting  the  line 
for  traffic.  On  a  suggestion  put  by  my  Brother  Pigott,  Mr.  Macna- 
mara  was  driven  to  an  answer,  which  (if  it  did  not  admit  that  it  was  the 
same  thing)  showed  that  he  had  difficulty  in  establishing  any  distinction 
whether  the  plaintiff  were  working  close  by,  or  whether  he  were  em- 
ployed on  the  turn-table  itself.  I  think  it  can  make  no  difference,  and 
the  rule  which  exempts  the  master  from  liability  to  a  servant  for  injury 
caused  by  the  negligence  of  a  fellow-servant  applies.  The  principle  on 
which  this  rule  was  established,  as  applicable  to  the  present  case,  is  very 
clearly  put  by  Blackburn,  J.,  in  the  judgment,  to  which  Mellor,  J., 
agreed,  in  the  court  below :  "There  are  many  cases  where  the  imme- 
diate object  on  which  the  one  servant  is  employed  is  very  dissimilar 


622  LAW  OP  TORTS. 

» 

from  that  on  which  the  other  is  employed,  and  yet  the  risk  of  injury 
from  the  negligence  of  the  one  is  so  much  a  natural  and  necessary  con- 
sequence of  the  employment  which  the  other  accepts  that  it  must  be  in- 
cluded in  the  risks  which  are  to  be  considered  in  his  wages.  I  think 
that  whenever  the  employment  is  such  as  necessarily  to  bring  the  person 
accepting  it  into  contact  with  the  traffic  of  the  line  of  a  railway,  risk  of 
injury  from  the  carelessness  of  those  managing  that  traffic  is  one  of 
the  risks  necessarily  and  naturally  incident  to  such  an  employment,  and 
within  the  rule."  The  cases  on  this  subject  are  extremely  numerous, 
and  have  been  closely  examined,  both  here  and  in  the  court  below,  and 
I  could  not  make  the  matter  clearer  by  going  through  them.  It  is  suf- 
ficient to  say  that  I  entirely  agree  with  the  judgment  of  the  court  be- 
low that  the  facts  of  the  case  bring  it  within  the  rule  exempting  the 
master  from  liability. 

POLLOCK,  C.  B.  I  only  wish  to  add  a  single  sentence.  It  appears 
to  me  that  we  should  be  letting  in  a  flood  of  litigation  were  we  to  decide 
the  present  case  in  favor  of  the  plaintiff ;  for,  if  a  carpenter's  employ- 
ment is  to  be  distinguished  from  that  of  the  porters  employed  by  the  same 
company,  it  will  be  sought  to  split  up  the  employees  in  every  large  estab- 
lishment into  different  departments  of  service,  although  the  common 
object  of  their  employment,  however  different,  is  but  the  furtherance  of 
the  business  of  the  master ;  yet  it  might  be  said,  with  truth,  that  no  two 
had  a  common  immediate  object.  This  shows  that  we  must  not  refine, 
but  look  at  the  common  object,  and  not  at  the  common  immediate  ob- 
ject. 

WILLES,  BYLES,  and  KEATING,  JJ.,  and  BR  AM  WELL, 
CHANNELL,  and  PIGOTT,  BB.,  concurred. 

Judgment  affirmed. 

(An  excellent  statement  of  the  rule  is  made  in  McAndrews  v.  Burns,  39  N. 
J.  Law,  117,  as  follows :  "A  master  is  not  liable  to  a  servant  for  the  negligence 
of  a  fellow  servant,  while  the  two  are  engaged  in  the  same  common  employ- 
ment, unless  for  negligence  in  the  selection  of  the  servant  at  fault,  or  in  re- 
taining him  after  notice  of  his  incompetency.  A  fellow  servant  is  any  one 
who  serves  and  is  controlled  by  the  same  master.  Common  employment  is 
service  of  such  kind  that,  in  the  exercise  of  ordinary  sagacity,  all  who  engage 
in  it  may  be  able  to  foresee,  when  accepting  it,  that  through  the  negligence  of 
fellow  servants  it  may  probably  expose  them  to  injury."  See  also  Ilolden 
v.  Fitchburg  R.  Co.,  129  Mass.  268,  37  Am.  Rep.  343 ;  Harrison  v.  Central  R. 
Co.,  31  N.  J.  Law,  293 ;  Norfolk  &  W.  R.  Co.  v.  Nuckol's  Adm'r,  91  Va.  193.  21 
S.  E.  342 ;  Toledo,  W.  &  W.  R.  Co.  v.  Black,  88  111.  112 ;  State  v.  Malster.  57 
Md.  287 ;  Sweeney  v.  Berlin  Co.,  101  N.  T.  520,  5  N.  E.  358,  54  Am.  Rep.  722. 
The  rule  applies  though  one  servant  is  superior  in  grade  to  the  other.  Thus, 
where  a  common  laborer  on  a  railroad  was  injured  by  a  collision  caused  by 
the  negligence  of  other  employees  of  the  company,  roadmaster,  foreman  of  a 
gang  of  laborers,  conductor,  etc.,  they  were  all  held  to  be  fellow  servants  of  the 
laborer,  and  the  company  was  held  not  liable.  Martin  v.  Atchison,  T.  &  S.  F. 
R.  Co.,  1G6  U.  S.  399,  17  Sup.  Ct  603,  41  L.  Ed.  1051.  To  the  same  cfT,-,  t  .-ire 


INJURY   CAUSING   DEATH.  623 

Northern  Pac.  R.  Co.  v.  Peterson,  162  U.  S.  346,  16  Sup.  Ct.  843,  40  L.  Ed.  994 ; 
Keenan  v.  New  York,  L.  E.  &  W.  R.  Co.,  145  N.  Y.  190,  39  N.  E.  711,  45  Am. 
St  Rep.  604 ;  Moody  v.  Hamilton  Mfg.  Co.,  159  Mass.  70,  34  N.  E.  185,  38  Am. 
St.  Rep.  396;  O'Brien  v.  American  Dredging  Co.,  53  N.  J.  Law,  291,  21  Atl. 
324 ;  Spancake  v.  Philadelphia  &  R.  R,  Co.,  148  Pa.  184,  23  Atl.  1006,  33  Am. 
St.  Rep.  821.  In  some  states,  however,  there  are  decisions  to  the  contrary. 
Northern  Pac.  R.  Co.  v.  Hambly,  154  U.  S.  349,  14  Sup.  Ct  983,  38  L,  Ed,  1009, 
giving  authorities  on  both  sides  of  this  question.) 


INJtJRY  CAUSING-  DEATH. 


(95  U.   S.  754,  24  L.   Ed.  580.) 

MOBILE   LIFE   INS.   CO.   v.    BRAMB. 

(Supreme  Court  of  United   States.     January   21,   1878.) 

1.  DEATH— GBOUND  OF  ACTION  FOR  DAMAGES. 

At  common  law  an  act  causing  the  death  of  a  human  being,  though 
clearly  involving  pecuniary  loss,  is  not  the  ground  of  an  action  for  dam- 
ages. Modern  statutes,  however,  in  England  and  generally  in  the  states 
of  this  country,  authorize  an  action  in  such  a  case,  to  be  brought  by  rela- 
tives of  the  decedent,  or  his  personal  representatives. 

2.  SAME— REMOTENESS  OF  DAMAGE. 

An  insurance  company  has  no  right  of  action,  either  by  common  law 
or  under  such  a  statute,  against  the  person  who  feloniously  or  negli- 
gently causes  the  death  of  a  person  insured  by  it,  for  the  loss  thereby 
caused  the  company,  such  loss  being  too  remote  and  indirect. 

Error  to  the  Circuit  Court  of  the  United  States  for  the  District  of 
Louisiana. 

Action  by  the  Mobile  Life  Insurance  Company  against  Samuel 
D.  Brame  to  recover  the  sum  of  $7,000,  the  alleged  loss  sustained  by 
plaintiff  in  the  death  of  one  Craven  McLemore,  willfully  killed  by  de- 
fendant. The  plaintiff  had  insured  the  life  of  McLemore,  and  its  pay- 
ment of  such  insurance  was  the  alleged  loss  to  plaintiff.  Defendant's 
demurrer  to  the  petition  was  sustained,  and  thereupon  plaintiff  sued 
out  a  writ  of  error. 

HUNT,  J.  The  argument  of  the  insurance  company  is  that  the 
killing  of  the  deceased  was  an  injury  to  or  violation  of  a  legal  right 
or  interest  of  the  company;  that,  as  a  consequence  thereof,  it  sus- 
tained a  loss,  which  is  the  proximate  effect  of  the  injury.  The  an- 
swer of  the  defendant  is  founded  upon  the  theory  that  the  loss  is  the 
remote  and  indirect  result  merely  of  the  act  charged;  that  at  the 
common  law  no  civil  action  lies  for  an  injury  which  results  in  the 
death  of  the  party  injured;  and  that  the  statutes  of  Louisiana  upon 


624  LAW  OF  TORTS. 

* 

that  subject  do  not  include  the  present  case.  The  authorities  are  so 
numerous  and  so  uniform  to  the  proposition  that,  by  the  common 
law,  no  civil  action  lies  for  an  injury  which  results  in  death,  that  it  is 
impossible  to  speak  of  it  as  a  proposition  open  to  question.  It  has 
been  so  decided  in  many  cases  in  the  English  courts,  and  in  many 
of  the  state  courts,  and  no  deliberate,  well-considered  decision  to 
the  contrary  is  to  be  found.  In  Hilliard  on  Torts  (page  87,  §  10) 
the  rule  is  thus  laid  down:  "Upon  a  similar  ground  it  has  been 
held  that  at  common  law  the  death  of  a  human  being,  though  clearly 
involving  pecuniary  loss,  is  not  the  ground  of  an  action  for  damages." 
The  most  of  the  cases  upon  the  subject  are  there  referred  to.  Baker 
v.  Bolton,  1  Camp.  493 ;  Connecticut  Mut.  Life  Ins.  Co.  v.  New 
York  &  N.  H.  R.  Co.,  25  Conn.  265,  65  Am.  Dec.  571 ;  Kramer  v. 
Railroad  Co.,  25  Cal.  434;  Railroad  Co.  v.  Keely's  Adm'r,  23  Ind. 
133;  Hyatt  v.  Adams,  16  Mich.  180;  Shields  v.  Yonge,  15  Ga.  349, 
GO  Am.  Dec.  698;  Insurance  Co.  v.  Frost,  37  111.  333.  The  only 
cases  that  tend  to  the  contrary  of  this  rule,  so  far  as  we  know,  are 
Cross  v.  Guthery,  2  Root,  90,  1  Am.  Dec.  61 ;  Plummer  v.  Webb,  1 
Ware,  79,  Fed.  Cas.  No.  11,234;  and  Ford  v.  Monroe,  20  Wend.  210. 
They  are  considered  by  the  New  York  Court  of  Appeals  in  Green  v. 
Railroad  Co.,  *41  N.  Y.  294,  2  Abb.  Dec.  277,  and  compared  with  the 
many  cases  to  the  contrary,  and  are  held  not  to  diminish  the  force  of 
the  rule  as  above  stated.  In  that  case  the  plaintiff  alleged  that  on 
the  9th  day  of  January,  1856,  his  wife  was  a  passenger  on  the  defend- 
ants' road,  and  by  the  gross  carelessness  and  unskillfulness  of  the 
defendants  a  collision  occurred,  by  means  of  which  his  wife  was 
killed,  "whereby  he  has  lost  and  been  deprived  of  all  the  comfort, 
benefit,  and  assistance  of  his  said  wife  in  his  domestic  affairs,  which 
he  might  and  otherwise  would  have  had,  to  his  damage,"  etc.  A  de- 
murrer to  this  complaint,  upon  the  ground  that  the  facts  alleged  con- 
stituted no  cause  of  action,  was  sustained  by  the  New  York  Court  of 
Appeals.  In  Hubgh  v.  Railroad  Co.,  6  La.  Ann.  495,  54  Am.  Dec. 
565,  the  same  principle  was  decided,  and  in  the  same  manner.  In 
giving  its  opinion,  the  court  say:  "The  exception  of  the  defendants 
presents  the  question  whether  the  death  of  a  human  being  can  be 
the  ground  of  an  action  for  damages."  Not  being  satisfied  with  this 
decision,  Messrs.  Ogden  &  Duncan  asked  for  a  rehearing,  the  argu- 
ment for  which  is  reported  in  the  same  volume,  pp.  498-508,  54  Am. 
Dec.  565.  It  was  denied  in  an  elaborate  opinion  by  Chief  Justice 
Eustis.  In  Hermann  v.  Railroad  Co.,  11  La.  Ann.  5,  this  principle 
was  again  affirmed  in  an  opinion  by  Chief  Justice  Merrick.  It  is  only 
necessary  to  refer  to  one  other  case,  involving  the  same  principle  as 
those  already  cited,  but  in  its  facts  more  closely  resembling  the  case 
under  consideration.  In  Connecticut  Mut.  Life  Ins.  Co.  v.  New 
York  &  N.  H.  R.  Co.,  supra,  the  declaration  alleged  that  on  the 
20th  day  of  March,  1850,  the  plaintiffs  had  outstanding  and  in  force 


INJURT    CAUSING    DEATH.  625 

.1  policy  of  insurance  for  $2,000  upon  the  life  of  Samuel  Beach ;  that 
Beach  was  on  that  day  a  passenger  on  the  defendants'  road;  that 
the  defendants  so  carelessly,  negligently,  and  unskillfully  conducted 
themselves  that  the  train  on  which  Beach  was  riding  was  thrown 
down  a  bank  into  the  river;  that  Beach  was  greatly  wounded  and 
bruised,  by  means  whereof  he  then  and  there  died,  by  reason  of 
which  the  plaintiffs  were  compelled  to  pay  to  his  administrators  the 
sum  of  $2,000  upon  the  said  policy. 

The  allegation  of  the  present  plaintiffs  is  that  Brame  tortiously  and 
illegally  took  the  life  of  McL,emore  by  shooting  him.  This  is  open 
to  the  inference  that  the  act  of  Brame  was  felonious.  The  case  in 
Connecticut  is  based  upon  the  allegation  of  negligence  and  careless- 
ness, and  is  the  more  favorable  to  a  recovery,  in  that  it  avoids  the 
suggestion  existing  in  the  present  case,  that  the  civil  injury  is  merged 
in  the  felony.  The  Supreme  Court  of  Connecticut  held  that  the  action 
could  not  be  sustained.  We  have  cited  and  given  references  to  the 
important  cases  on  this  question;  they  are  substantially  uniform 
against  the  right  of  recovery.  Upon  principle  we  think  no  other  con- 
clusion could  be  reached  than  that  stated.  The  relation  between 
the  insurance  company  and  McLemore,  the  deceased,  was  created 
by  a  contract  between  them,  to  which  Brame  was  not  a  party.  The 
injury  inflicted  by  him  was  upon  McLemore,  against  his  personal 
rights ;  that  it  happened  to  injure  the  plaintiff  was  an  incidental  cir- 
cumstance, a  remote  and  indirect  result,  not  necessarily  or  legitimate- 
ly resulting  from  the  act  of  killing.  As  in  Insurance  Co.  v.  Bosher, 
39  Me.  253,  63  Am.  Dec.  618,  where  an  insurance  company  brought 
suit  against  one  who  had  willfully  fired  a  store  upon  which  it  had  a 
policy  of  insurance,  which  it  was  thereby  compelled  to  pay,  it  was 
held  that  the  loss  was  remote  and  indirect,  and  that  the  action  could 
not  be  sustained.  In  Ashley  v.  Dixon,  48  N.  Y.  430,  8  Am.  Rep.  559, 
it  was  held  that  if  A  is  under  a  contract  to  convey  his  land  to  B, 
and  C  persuades  him  not  to  do  so,  no  action  lies  by  B.  against  C. 
So  a  witness  is  not  liable  for  evidence  given  by  him  in  a  suit,  although 
false,  by  which  another  is  injured.  Grove  v.  Brandenburg,  7  Blackf. 
234 ;  Dunlap  v.  Glidden,  31  Me.  435,  52  Am.  Dec.  625.  And  in  An- 
thony v.  Slaid,  11  Mete.  (Mass.)  290,  a  contractor  for  the  support  of 
town  paupers  had  been  subjected  to  extra  expense  in  consequence 
of  personal  injury  inflicted  upon  one  of  them,  and  he  brought  the 
action  against  the  assailant  to  recover  for  such  expenditure.  The 
court  held  the  damage  to  be  remote  and  indirect,  and  not  sustained 
by  means  of  any  natural  or  legal  relation  between  the  plaintiff  and 
the  party  injured,  but  simply  by  means  of  a  special  contract  between 
the  plaintiff  and  the  town.  Some  text-writers  are  referred  to  as 
holding  a  different  view,  but  we  are  not  cited  to  any  case  in  this 
country  or  Great  Britain  where  a  different  doctrine  has  been  held. 
CHASE  (2o  ED.) — 40 


626  LAW  OF  TORTS. 

By  the  common  law,  actions  for  injuries  to  the  person  abate  by 
death,  and  cannot  be  revived  or  maintained  by  the  executor  or  the 
heir.  By  the  act  of  parliament  of  August  26,  1846,  (9  &  10  Viet.,)  an 
action  in  certain  cases  is  given  to  the  representatives  of  the  de- 
ceased. This  principle,  in  various  forms  and  with  various  limita- 
tions, has  been  incorporated  into  the  statutes  of  many  of  our  states, 
and,  among  others,  into  that  of  Louisiana.  It  is  there  given  in  favor 
of  the  minor  children  and  widow  of  the  deceased,  and,  in  default  of 
these  relatives,  in  favor  of  the  surviving  father  and  mother.  Acts 
La.  1855,  No.  223,  p.  270.  The  case  of  a  creditor,  much  less  a  re- 
mote claimant  like  the  plaintiff,  is  not  within  the  statute. 

In  each  of  the  briefs  it  is  stated  that  the  defendant  was  tried  for  the 
homicide,  and  acquitted.  In  the  view  we  take  of  the  case,  the  fact 
of  a  trial  or  its  result  is  a  circumstance  quite  immaterial  to  the  pres- 
ent question,  however  important  it  may  have  been  to  defendant. 

Judgment  affirmed. 

(See  also  The  Harrisburg,  119  U.  S.  199,  7  Sup.  Ct.  140,  30  L.  Ed.  358;  Wyatt 
v.  Williams,  43  N.  H.  102;  Carey  v.  Railroad  Co.,  1  Cush.  475,  48  Am.  Dec. 
616;  Stuber  v.  McEntee,  142  N.  Y.  200,  36  N.  E.  878;  Snedeker  v.  Snedeker, 
164  N.  Y.  58,  58  N.  B.  4;  Bowes  v.  City  of  Boston,  155  Mass.  344,  29  N.  E. 
633,  15  L.  R.  A.  365.) 


FRAUD  AND  DECEIT. 


I.  ELEMENTS  OF  ACTION— FRAUDULENT  INTENT. 
1.  English  rule. 

(L.  R.  14  App.  Cas.  337.) 
DERRY  et  al.  v.  PEEK  (in  part). 
(House  of  Lords.     July  1,  1889.) 

1.  FBATJD— WHEN  ACTION  OF  DECEIT  LIES. 

To  support  an  action  of  deceit  to  recover  damages,  plaintiff  must  prove 
actual  fraud.  Fraud  is  proved  when  it  is  shown  that  a  false  representa- 
tion has  been  made  knowingly,  or  without  belief  in  its  truth,  or  recklessly, 
without  caring  whether  it  be  true  or  false. 

2.  SAME. 

A  false  statement,  made  through  carelessness  and  without  reasonable 
ground  for  believing  it  to  be  true,  may  be  evidence  of  fraud,  but  does 
not  necessarily  amount  to  fraud.  Such  a  statement,  if  made  in  the  hon- 
est belief  that  it  is  true,  is  not  fraudulent,  and  does  not  render  the  per- 
son making  it  liable  to  an  action  of  deceit. 


FRAUD    AND    DECEIT. 

8.  SAME— PROSPECTUS  OF  COMPANY. 

A  special  act  incorporating  a  tramway  company  provided  that  the  cars 
might  be  moved  by  animal  power,  and,  with  the  consent  of  the  board  of 
trade,  by  steam  power.  The  directors  issued  a  prospectus,  containing 
a  statement  that  by  their  charter  the  company  had  the  right  to  use  steam 
power  instead  of  horses.  Plaintiff  took  shares  on  the  faith  of  such  state- 
ment. The  board  of  trade  afterwards  refused  their  consent  to  the  use  of 
steam,  and  the  company  was  wound  up.  Held,  in  an  action  of  deceit 
against  the  directors  founded  upon  the  false  statement,  that  defendants 
were  not  liable,  the  statement  as  to  steam  power  having  been  made  by 
them  in  the  honest  belief  that  it  was  true. 

Appeal  from  Court  of  Appeal. 

Action  on  the  case  brought  by  Sir  Henry  William  Peek  against 
William  Derry,  chairman,  and  J.  C.  Wakefield,  M.  M.  Moore,  J. 
Pethwick,  and  S.  J.  Wilde,  four  of  the  directors  of  the  Plymouth, 
Devonport  &  District  Tramways  Company,  for  damages  for  alleged 
fraudulent  misrepresentations  of  defendants  whereby  plaintiff  was 
induced  to  take  shares  in  the  company.  The  company  was  incor- 
porated in  1882  by  special  act,  (45  &  46  Viet.  c.  159,)  which  provided, 
inter  alia,  that  the  cars  used  on  the  tramways  might  be  moved  by 
animal  power,  and,  with  the  consent  of  the  board  of  trade,  by  steam 
or  any  mechanical  power,  for  fixed  periods,  and  subject  to  the  regu- 
lation of  the  board.  The  tramways  act  of  1870  (33  &  34  Viet.  c.  78) 
provides  that  all  cars  used  on  any  tramway  shall  be  moved  by  the 
power  prescribed  by  the  special  act,  and,  where  no  such  power  is 
prescribed,  by  animal  power  only.  In  1883  the  defendants,  as  direct- 
ors of  the  company,  issued  a  prospectus  containing  the  following 
paragraph :  "One  great  feature  of  the  undertaking,  to  which  consid- 
erable importance,  should  be  attached,  is  that,  by  the  special  act  of 
parliament  obtained,  the  company  has  the  right  to  use  steam  or  me- 
chanical motive  power,  instead  of  horses;  and  it  is  fully  expected 
that,  by  means  of  this,  a  considerable  saving  will  result  in  the  work- 
ing expenses  of  the  line,  as  compared  with  other  tramways  worked 
by  horses."  Plaintiff,  relying  upon  the  representation  of  the  right  of 
the  company  to  use  steam  or  mechanical  power,  took  shares  in  the 
company.  Subsequently  the  board  of  trade  refused  to  consent  te 
the  use  of  steam  or  other  mechanical  power,  except  on  certain  por- 
tions of  the  tramways,  the  result  of  which  was  that  the  company  was 
wound  up.  Plaintiff  brought  this  action  of  deceit.  At  the  trial,  be- 
fore Stirling,  J.,  the  action  was  dismissed ;  but,  on  appeal  to  the  court 
of  appeal,  the  decision  below  was  reversed.  Defendants  appealed 
from  the  judgment  of  the  court  of  appeal. 

LORD  HERSCHELL.  My  lords,  in  the  statement  of  claim  in 
this  action  the  respondent,  who  is  the  plaintiff,  alleges  that  the  appel- 
lants made,  in  a  prospectus  issued  by  them,  certain  statements  which 
were  untrue;  that  they  well  knew  that  the  facts  were  not  as  stated 


628  LAW  OF  TORTS. 

• 

in  the  prospectus,  and  made  the  representations  fraudulently,  and 
with  the  view  to  induce  the  plaintiff  to.  take  shares  in  the  company. 
"This  acjion  is  one  which  is  commonly  called  an  action  of  'deceit,' 
a  mere  common-law  action."  This  is  the  description  of  it  given  by 
Cotton,  L.  J.,  in  delivering  judgment.  I  think  it  important  that  it 
should  be  borne  in  mind  that  such  an  action  differs  essentially  from 
one  brought  to  obtain  rescission  of  a  contract  on  the  ground  of  mis- 
representation of  a  material  fact.  The  principles  which  govern  the 
two  actions  differ  widely.  Where  rescission  is  claimed  it  is  only  nec- 
essary to  prove  that  there  was  misrepresentation.  Then,  however 
honestly  it  may  have  been  made,  however  free  from  blame  the  per- 
son who  made  it,  the  contract,  having  been  obtained  by  misrepresen- 
tation, cannot  stand.  In  an  action  of  deceit,  on  the  contrary,  it  is 
not  enough  to  establish  misrepresentation  alone.  It  is  conceded  on 
all  hands  that  something  more  must  be  proved  to  cast  liability  upon 
the  defendant,  though  it  has  been  a  matter  of  controversy  what  ad- 
ditional elements  are  requisite.  I  lay  stress  upon  this,  because  ob- 
servations made  by  learned  judges  in  actions  for  rescission  have  been 
cited,  and  much  relied  upon  at  the  bar  by  counsel  for  the  respondent. 
Care  must  obviously  be  observed  in  applying  the  language  used  in 
relation  to  such  actions  to  an  action  of  deceit.  Even  if  the  scope  of 
the  language  used  extend  beyond  the  particular  action  which  was 
being  dealt  with,  it  must  be  remembered  that  the  learned  judges  were 
not  engaged  in  determining  what  is  necessary  to  support  an  action  of 
deceit,  or  in  discriminating  with  nicety  the  elements  which  enter  in- 
to it. 

In  the  court  of  appeal  Sir  James  Hannen  says:  "I  take  the  law 
to  be  that  if  a  man  takes  upon  himself  to  assert  a  thing  to  be  true 
which  he  does  not  know  to  be  true,  and  has  no  reasonable  ground 
to  believe  to  be  true,  in  order  to  induce  another  to  act  upon  the  as- 
sertion, who  does  so  act,  and  is  thereby  damnified,  the  person  so 
damnified  is  entitled  to  maintain  an  action  for  deceit."  Again, 
Lopes,  L.  J.,  states  what,  in  his  opinion,  is  the  result  of  the  cases. 
I  will  not  trouble  your  lordships  with  quoting  the  first  three  proposi- 
tions which  he  lays  down,  although  I  do  not  feel  sure  that  the  third 
is  distinct  from,  and  not  rather  an  instance  of,  the  case  dealt  with  by 
the  second  proposition.  But  he  says  that  a  person  making  a  false 
statement,  intended  to  be  in  fact  relied  on  by  the  person  to  whom  it 
is  made,  may  be  sued  by  the  person  damaged  thereby,  "fourthly, 
if  it  is  untrue  in  fact,  but  believed  to  be  true,  but  without  any  reason- 
able ground  for  such  belief." 

It  will  thus  be  seen  that  the  learned  judges  concurred  in  think- 
ing that  it  was  sufficient  to  prove  that  the  representations  made  were 
not  in  accordance  with  fact,  and  that  the  person  making  them  had  no 
reasonable  ground  for  believing  them.  They  did  hot  treat  the  ab- 
sence of  such  reasonable  ground  as  evidence  merely  that  the  state- 


FRAUD    AND    DECEIT.  620 

ments  were  made  recklessly,  careless  whether  they  were  true  or 
false,  and  without  belief  that  they  were  true;  but  they  adopted  as 
the  test  of  liability,  not  the  existence  of  belief  in  the  truth  of  the  as- 
sertions made,  but  whether  the  belief  in  them  was  founded  upon  any 
reasonable  grounds.  It  will  be  seen,  further,  that  the  court  did  not 
purport  to  be  establishing  any  new  doctrine.  They  deemed  that  they 
were  only  following  the  cases  already  decided,  and  that  the  proposi- 
tion which  they  concurred  in  laying  down  was  established  by  prior 
authorities.  Indeed,  Lopes,  L.  J.,  expressly  states  the  law  in  this 
respect  to  be  well  settled.  This  renders  a  close  and  critical  examina- 
tion of  the  earlier  authorities  necessary. 

I  need  go  no  further  back  than  the  leading  case  of  Pasley  v.  Free- 
man, 2  Smith,  Lead.  Cas.  94.  If  it  was  not  there  for  the  first  time 
held  that  an  action  of  deceit  would  lie  in  respect  of  fraudulent  rep- 
resentations against  a  person  not  a  party  to  a  contract  induced  by 
them,  the  law  was,  at  all  events,  not  so  well  settled  but  that  a  dis- 
tinguished judge,  Grose,  J.,  differing  from  his  brethren  on  the  bench, 
held  that  such  an  action  was  not  maintainable.  Buller,  J.,  who  held 
that  the  action  lay,  adopted  in  relation  to  it  the  language  of  Croke, 
J.,  in  Baily  v.  Merrell,  3  Bulst.  95,  who  said :  "Fraud  without  dam- 
age, or  damage  without  fraud,  gives  no  cause  of  action,  but  where 
these  two  do  concur,  *  *  *  an  action  lies."  In  reviewing  the, 
case  of  Crosse  v.  Gardner,  Carth.  90,  he  says :  "Knowledge  of  the 
falsehood  of  the  thing  asserted  is  fraud  and  deceit ;"  and,  further, 
after  pointing  out  that  in  Risney  v.  Selby,  1  Salk.  211,  the  judgment 
proceeded  wholly  on  the  ground  that  the  defendant  knew  what  he 
asserted  to  be  false,  he  adds :  "The  assertion  alone  will  not  maintain 
the  action,  but  the  plaintiff  must  go  on  to  prove  that  it  was  false, 
and  that  the  defendant  knew  it  to  be  so ;"  the  latter  words  being 
specially  emphasized.  Kenyon,  C.  J.,  said:  "The  plaintiffs  applied 
to  the  defendant,  telling  him  that  they  were  going  to  deal  with  Falch, 
and  desired  to  be  informed  of  his  credit,  when  the  defendant  fraud- 
ulently, and  knowing  it  to  be  otherwise,  and  with  a  design  to  deceive 
the  plaintiffs,  made  the  false  affirmation  stated  on  the  record,  by 
which  they  sustained  damage.  Can  a  doubt  be  entertained  for  a 
moment  but  that  this  is  injurious  to  the  plaintiffs?"  In  this  case  it  was 
evidently  considered  that  fraud  was  the  basis  of  the  action,  and  that 
such  fraud  might  consist  in  making  a  statement  known  to  be  false. 
Haycraft  v.  Creasy,  2  East,  92,  was  again  an  action  in  respect  of  a 
false  affirmation  made  by  the  defendant  to  the  plaintiff  about  the 
credit  of  a  third  party  whom  the  plaintiff  was  about  to  trust.  The 
words  complained  of  were :  "I  can  assure  you  of  my  own  knowledge 
that  you  may  credit  Miss  R.  to  any  amount  with  perfect  safety."  All 
the  judges  were  agreed  that  fraud  was  of  the  essence  of  the  action, 
but  they  differed  in  their  view  of  the  conclusion  to  be  drawn  from 
the  facts.  Lord  Kenyon  thought  that  fraud  had  been  proved,  be- 


630  LAW  OF   TORTS. 

cause  the  defendant  stated  that  to  be  true  within  his  own  knowledge 
which  he  did  not  know  to  be  true.  The  other  judges,  thinking  that 
the  defendant's  words  vouching  his  own  knowledge  were  no  more 
than  a  strong  expression  of  opinion,  inasmuch  as  a  statement  con- 
cerning the  credit  of  another  can  be  no  more  than  a  matter  of  opin- 
ion, and  that  he  did  believe  the  lady's  credit  to  be  what  he  repre- 
sented, held  that  the  action  would  not  lie.  It  is  beside  the  present 
purpose  to  inquire  which  view  of  the  facts  was  the  more  sound. 
Upon  the  law  there  was  no  difference  of  opinion.  It  is  a  distinct  de- 
cision that  knowledge  of  the  falsity  of  the  affirmation  made  is  essen- 
tial to  the  maintenance  of  the  action,  and  that  belief  in  its  truth  af- 
fords a  defense. 

I  may  pass  now  to  Foster  v.  Charles,  7  Bing.  105.  It  was  there 
contended  that  the  defendant  was  not  liable,  even  though  the  repre- 
sentation he  made  was  false  to  his  knowledge,  because  he  had  no 
intention  of  defrauding  or  injuring  the  plaintiff.  This  contention 
was  not  upheld  by  the  court,  Tindal,  C.  J.,  saying:  "It  is  a  fraud  in 
law  if  a  party  makes  representations  which  he  knows  to  be  false,  and 
injury  ensues,  although  the  motives  from  which  the  representations 
proceeded  may  not  have  been  bad."  This  is  the  first  of  the  cases 
in  which  I  have  met  with  the  expression  "fraud  in  law."  It  was  man- 
ifestly used  in  relation  to  the  argument  that  the  defendant  was  not 
actuated  by  a  desire  to  defraud  or  injure  the  person  to  whom  the 
representation  was  made.  The  popular  use  of  the  word  "fraud" 
perhaps  involves  generally  the  conception  of  such  a  motive  as  one 
of  its  elements.  But  I  do  not  think  the  chief  justice  intended  to 
indicate  any  doubt  that  the  act  which  he  characterized  as  a  fraud  in 
law  was  in  truth  fraudulent  as  a  matter  of  fact  also.  Willfully  to 
tell  a  falsehood,  intending  that  another  shall  be  led  to  act  upon  it  as 
if  it  were  the  truth,  may  well  be  termed  fraudulent,  whatever  the  mo- 
tive which  induces  it,  though  it  be  neither  gain  to  the  person  making 
the  assertion  nor  injury  to  the  person  to  whom  it  is  made. 

Foster  v.  Charles,  7  Bing.  105,  was  followed  in  Corbett  v.  Brown, 
8  Bing.  33,  and  shortly  afterwards  in  Polhill  v.  Walter,  3  Barn.  & 
Adol.  114.  The  learned  counsel  for  the  respondent  placed  great  re- 
liance on  this  case,  because,  although  the  jury  had  negatived  the  ex- 
istence of  fraud  in  fact,  the  defendant  was  nevertheless  held  liable. 
It  is  plain,  however,  that  all  that  was  meant  by  this  finding  of  the 
jury  was  that  the  defendant  was  not  actuated  by  any  corrupt  or  im- 
proper motive,  for  Lord  Tenterden  says:  "It  was  contended  that, 
*  *  *  in  order  to  maintain  this  species  of  action,  it  is  not  neces- 
sary to  prove  that  the  false  representation  was  made  from  a  corrupt 
motive  of  gain  to  the  defendant  or  a  wicked  motive  of  injury  to  the 
plaintiff.  It  was  said  to  be  enough  if  a  representation  is  made  which 
the  party  making  it  knows  to  be  untrue,  and  which  is  intended  by 
him,  or  which  from  the  mode  in  which  it  is  made  is  calculated,  to  in- 


FRAUD    AND    DECEIT.  631 

duce  another  to  act  on  the  faith  of  it  in  such  a  way  as  that  he  may 
incur  damage,  and  that  damage  is  actually  incurred.  A  willful  false- 
hood of  such  a  nature  was  contended  to  be,  in  the  legal  sense  of  the 
word,  a  fraud,  and  for  this  position  was  cited  Foster  v.  Charles,  7 
Bing.  105,  to  which  may  be  added  the  recent  case  of  Corbett  v. 
Brown,  8  Bing.  33.  The  principle  of  these  cases  appears  to  be  well 
founded,  and  to  apply  to  the  present." 

In  a  later  case  of  Crawshay  v.  Thompson,  4  Man.  &  G.  357,  Maule, 
J.,  explains  Polhill  v.  Walter,  3  Barn.  &  Adol.  114,  thus :  "If  a  wrong 
be  done  by  a  false  representation  of  a  party  who  knows  such  rep- 
resentation to  be  false,  the  law  will  infer  an  intention  to  injure.  That 
is  the  effect  of  Polhill  v.  Walter."  In  the  same  case,  Cresswell,  J., 
defines  "fraud  in  law"  in  terms  which  have  been  often  quoted.  "The 
cases,"  he  says,  "may  be  considered  to  establish  the  principle  that  fraud 
in  law  consists  in  knowingly  asserting  that  which  is  false  in  fact  to 
the  injury  of  another." 

In  Moens  v.  Heyworth,  10  Mees.  &  W.  157,  which  was  decided  in 
the  same  year  as  Crawshay  v.  Thompson,  4  Man.  &  G.  357,  Lord 
Abinger  having  suggested  that  an  action  of  fraud  might  be  main- 
tained where  no  moral  blame  was  to  be  imputed,  Parke,  B.,  said: 
"To  support  that  count  [viz.,  a  count  for  fraudulent  representation] 
it  was  essential  to  prove  that  the  defendants,  knowingly,  [and  I  ob- 
serve that  this  word  is  emphasized,]  by  words  or  acts,  made  such  a 
representation  as  is  stated  in  the  third  count,  relative  to  the  invoice 
of  these  goods,  as  they  knew  to  be  untrue." 

The  next  case  in  the  series  (Taylor  v.  Ashton,  11  Mees.  &  W.  401) 
is  one  which  strikes  me  as  being  of  great  importance.  It  was  an  ac- 
tion brought  against  directors  of  a  bank  for  fraudulent  representa- 
tions as  to  its  affairs,  whereby  the  plaintiff  was  induced  to  take 
shares.  The  jury  found  the  defendants  not  guilty  of  fraud,  but  ex- 
pressed the  opinion  that  they  had  been  guilty  of  gross  negligence. 
Exception  was  taken  to  the  mode  in  which  the  case  was  left  to  the 
jury,  and  it  was  contended  that  their  verdict  was  sufficient  to  render 
the  defendants  liable.  Parke,  B.,  however,  in  delivering  the  opinion 
of  the  court,  said :  "It  is  insisted  that  even  that,  [viz.,  the  gross  neg- 
ligence which  the  jury  had  found,]  accompanied  with  a  damage  to 
the  plaintiff  in  consequence  of  that  gross  negligence,  would  be  suf- 
ficient to  give  him  a  right  of  action.  From  this  proposition  we  en- 
tirely dissent,  because  we  are  of  opinion  that,  independently  of  any 
contract  between  the  parties,  no  one  can  be  made  responsible  for  a 
representation  of  this  kind  unless  it  be  fraudulently  made.  *  * 
But  then  it  was  said  that,  in  order  to  constitute  that  fraud,  it  was  not 
necessary  to  show  that  the  defendants  knew  the  fact  they  stated  to 
be  untrue ;  that  it  was  enough  that  the  fact  was  untrue,  if  they  com- 
municated that  fact  for  a  deceitful  purpose ;  and  to  that  proposition 
the  court  is  prepared  to  assent.  It  is  not  necessary  to  show  that  the 


032  LAW   OF   TORTS. 

defendants  knew  the  facts  to  be  untrue ;  if  they  stated  a  fact  which 
was  untrue  for  a  fraudulent  purpose,  they  at  the  same  time  not  be- 
lieving that  fact  to  be  true,  in  that  case  it  would  be  both  a  legal  and 
moral  fraud." 

Now,  it  is  impossible  to  conceive  a  more  emphatic  declaration  than 
this :  that,  to  support  an  action  of  deceit,  fraud  must  be  proved,  and 
that  nothing  less  than  fraud  will  do.  I  can  find  no  trace  of  the  idea 
that  it  would  suffice  if  it  were  shown  that  the  defendants  had  not  rea- 
sonable grounds  for  believing  the  statements  they  made.  It  is  dif- 
ficult to  understand  how  the  defendants  could,  in  the  case  on  which 
I  am  commenting,  have  been  guilty  of  gross  negligence  in  making 
the  statements  they  did,  if  they  had  reasonable  grounds  for  believing 
them  to  be  true,  or  if  they  had  taken  care  that  they  had  reason- 
able grounds  for  making  them. 

All  the  cases  I  have  hitherto  referred  to  were  in  courts  of  first  in- 
stance. But  in  Evans  v.  Collins,  5  Q.  B.  804,  820,  they  were  re- 
viewed by  the  exchequer  chamber.  The  judgment  of  the  court  was 
delivered  by  Tindal,  C.  J.  After  stating  the  question  at  issue  to  be 
"whether  a  statement  or  representation  which  is  false  in  fact,  but 
not  known  to  be  so  by  the  party  making  it,  but,  on  the  contrary, 
made  honestly,  and  in  the  full  belief  that  it  is  true,  affords  a  ground 
of  action,"  he  proceeds  to  say:  "The  current  of  the  authorities,  from 
Pasley  v.  Freeman,  2  Smith,  Lead.  Cas.  94,  downwards,  has  laid  down 
the  general  rule  of  law  to  be  that  fraud  must  concur  with  the  false 
statement  in  order  to  give  a  ground  of  action."  Is  it  not  clear  that 
the  court  considered  that  fraud  was  absent,  if  the  statement  was 
"made  honestly,  and  in  the  full  belief  that  it  was  true  ?" 

In  Evans  v.  Edmonds,  13  C.  B.  777,  Maule,  J.,  expressed  an  im- 
portant opinion,  often  quoted,  which  has  been  thought  to  carry  the 
law  further  than  the  previous  authorities,  though  I  do  not  think  it 
really  does  so.  He  said:  "If  a  man  having  no  knowledge  whatever 
on  the  subject  takes  upon  himself  to  represent  a  certain  state  of 
facts  to  exist,  he  does  so  at  his  peril,  and  if  it  be  done  either  with  a 
view  to  secure  some  benefit  to  himself,  or  to  deceive  a  third  person, 
he  is  in  law  guilty  of  a  fraud,  for  he  takes  upon  himself  to  warrant 
his  own  belief  of  the  truth  of  that  which  he  so  asserts.  Although  the 
person  making  the  representation  may  have  no  knowledge  of  its 
falsehood,  the  representation  may  still  have  been  fraudulently  made." 
The  foundation  of  this  proposition  manifestly  is  that  a  person  making 
any  statement  which  he  intends  another  to  act  upon  must  be  taken  to 
warrant  his  belief  .in  its  truth.  Any  person  making  such  a  statement 
must  always  be  aware  that  the  person  to  whom  it  is  made  will  under- 
stand, if  not  that  he  who  makes  it  knows,  yet  at  least  that  he  believes, 
it  to  be  true;  and,  if  he  has  no  such  belief,  he  is  as  much  guilty  of 
fraud  as  if  he  had  made  any  other  representation  which  he  knew  to 
be  false  or  did  not  believe  to  be  true. 


FRAUD    AND    DECEIT.  633 

I  now  arrive  at  the  earliest  case  in  which  I  find  the  suggestion 
that  an  untrue  statement,  made  without  reasonable  ground  for  be- 
lieving it,  will  support  an  action  for  deceit.  In  Bank  v.  Addie,  L. 
R.  1  H.  L.  Sc.  145,  162,  the  lord  president  told  the  jury  "that,  if  a 
case  should  occur  of  directors  taking  upon  themselves  to  put  forth 
in  their  report  statements  of  importance  in  regard  to  the  affairs  of 
the  bank,  false  in  themselves,  and  which  they  did  not  believe,  or  had 
no  reasonable  ground  to  believe,  to  be  true,  that  would  be  a  misrep- 
resentation and  deceit."  Exceptions  having  been  taken  to  this  direc- 
tion without  avail  in  the  court  of  sessions,  Lord  Chelmsford,  in  this 
house,  said:  "I  agree  in  the  propriety  of  this  interlocutor.  In  the 
argument  upon  this  exception  the  case  was  put  of  an  honest  belief 
being  entertained  by  the  directors  of  the  reasonableness  of  .which  it 
was  said  the  jury,  upon  this  direction,  would  have  to  judge.  But 
supposing  a  person  makes  an  untrue  statement,  which  he  asserts  to 
be  the  result  of  a  bona  fide  belief  in  its  truth,  how  can  the  bona 
fides  be  tested  except  by  considering  the  grounds  of  such  belief? 
And  if  an  untrue  statement  is  made  founded  upon  a  belief  which  is 
destitute  of  all  reasonable  grounds,  or  which  the  least  inquiry  would 
immediately  correct,  I  do  not  see  that  it  is  not  fairly  and  correctly 
characterized  as  misrepresentation  and  deceit."  I  think  there  is  here 
some  confusion  between  that  which  is  evidence  of  fraud  and  that 
which  constitutes  it.  A  consideration  of  the  grounds  of  belief  is  no 
doubt  an  important  aid  in  ascertaining  whether  the  belief  was  really 
entertained.  A  man's  mere  assertion  that  he  believed  the  statement 
he  made  to  be  true  is  not  accepted  as  conclusive  proof  that  he  did 
so.  There  may  be  such  an  absence  of  reasonable  ground  for  his 
belief  as,  in  spite  of  his  assertion,  to  carry  conviction  to  the  mind 
that  he  had  not  really  the  belief  which  he  alleges.  If  the  learned  lord 
intended  to  go  further,  as  apparently  he  did,  and  to  say  that,  though 
the  belief  was  really  entertained,  yet,  if  there  were  no  reasonable 
grounds  for  it,  the  person  making  the  statement  was  guilty  of  fraud 
in  the  same  way  as  if  he  had  known  what  he  stated  to  be  false,  I  say, 
with  all  respect,  that  the  previous  authorities  afford  no  warrant  for 
the  view  that  an  action  of  deceit  would  lie  under  such  circumstances. 
A  man  who  forms  his  belief  carelessly,  or  is  unreasonably  credulous, 
may  be  blameworthy  when  he  makes  a  representation  on  which  an- 
other is  to  act ;  but  he  is  not,  in  my  opinion,  "fraudulent"  in  the  sense 
in  which  that  word  was  used  in  all  the  cases  from  Pasley  v.  Freeman, 
2  Smith,  Lead.  Cas.  94,  down  to  that  with  which  I  am  now  dealing. 
Even  when  the  expression  "fraud  in  law"  has  been  employed,  there 
has  always  been  present,  and  regarded  as  an  essential  element,  that 
the  deception  was  willful,  either  because  the  untrue  statement  was 
known  to  be  untrue,  or  because  belief  in  it  was  asserted  without  such 
belief  existing.  I  have  made  these  remarks  with  the  more  con- 
fidence because  they  appear  to  me  to  have  the  high  sanction  of  Lord 


634  LAW  OF  TORTS. 

Cranworth.  In  delivering  his  opinion  in  the  same  case  he  said:  "I 
confess  that  my  opinion  was  that  in  what  his  lordship  [the  lord  presi- 
dent] thus  stated  he  went  beyond  what  principle  warrants.  If  per- 
sons in  the  situation  of  directors  of  a  bank  make  statements  as  to  the 
condition  of  its  affairs  which  they  bona  fide  believe  to  be  true,  1 
cannot  think  they  can  be  guilty  of  fraud  because  other  persons  think, 
or  the  court  thinks,  or  your  lordships  think,  that  there  was  no  suf- 
ficient ground  to  warrant  the  opinion  which  they  had  formed.  If  a 
little  more  care  and  caution  must  have  led  the  directors  to  a  conclu- 
sion different  from  that  which  they  put  forth,  this  may  afford  strong 
evidence  to  show  that  they  did  not  really  believe  in  the  truth  of 
what  they  stated,  and  so  that  they  were  guilty  of  fraud.  But  this 
would  be  the  consequence,  not  of  their  having  stated  as  true  what 
they  had  not  reasonable  ground  to  believe  to  be  true,  but  of  their 
having  stated  as  true  what  they  did  not  believe  to  be  true."  Sir 
James  Hannen,  in  his  judgment  below,  seeks  to  limit  the  application 
of  what  Lord  Cranworth  says  to  cases  where  the  statement  made  is 
a  matter  of  opinion  only.  With  all  deference,  I  do  not  think  it 
was  intended  to  be  or  can  be  so  limited.  The  direction  which  he 
was  considering,  and  which  he  thought  went  beyond  what  true  prin- 
ciple warranted,  had  relation  to  making  false  statements  of  import- 
ance in  regard  to  the  affairs  of  the  bank.  When  this  is  borne  in  mind, 
and  the  words  which  follow  those  quoted  by  Sir  James  Hannen  are 
looked  at,  it  becomes  to  my  mind  obvious  that  Lord  Cranworth  did  not 
use  the  words,  "the  opinion  which  they  had  formed,"  as  meaning  any- 
thing different  from  "the  belief  which  they  entertained." 

The  opinions  expressed  by  Lord  Cairns  in  a  well-known  case  have 
been  cited  as  though  they  supported  the  view  that  an  action  of  deceit 
might  be  maintained  without  any  fraud  on  the  part  of  the  person  sued. 
I  do  not  think  that  they  bear  any  such  construction.  In  the  case  of  Min- 
ing Co.  v.  Smith,  L.  R.  4  H.  L.  64,  79,  he  said :  "If  persons  take  upon 
themselves  to  make  assertions  as  to  which  they  are  ignorant  whether 
they  are  true  or  untrue,  they  must,  in  a  civil  point  of  view,  be  held  as 
responsible  as  if  they  had  asserted  that  which  they  knew  to  be  untrue." 
This  must  mean  that  the  persons  referred  to  were  conscious,  when  mak- 
ing the  assertion,  that  they  were  ignorant  whether  it  was  true  or  un- 
true ;  for,  if  not,  it  might  be  said  of  any  one  who  innocently  makes  a 
false  statement.  He  must  be  ignorant  that  it  is  untrue,  for  otherwise  he 
would  not  make  it  innocently.  He  must  be  ignorant  that  it  is  true, 
for  by  the  hypothesis  it  is1  false.  Construing  the  language  of  Lord 
Cairns  in  the  sense  I  have  indicated,  it  is  no  more  than  an  adoption 
of  the  opinion  expressed  by  Maule,  J.,  in  Evans  v.  Edmonds,  13  C. 
B.  777.  It  is  a  case  of  the  representation  of  a  person's  belief  in  a 
fact  when  he  is  conscious  that  he  knows  not  whether  it  be  true  or 
false,  and  when  he  has  therefore  no  such  belief.  When  Lord  Cairns 
speaks  of  it  as  not  being  fraud  in  the  more  invidious  sense,  he  refers, 


FRAUD    AND    DECEIT.  635 

i  think,  only  to  the  fact  that  there  was  no  intention  to  cheat  or  in- 
jure. 

I  come  now  to  very  recent  cases.  In  Weir  v.  Bell,  3  Exch.  Div. 
238,  Lord  Bramwell  vigorously  criticised  the  expression  "legal  fraud," 
and  indicated  a  very  decided  opinion  that  an  action  founded  on  fraud 
could  not  be  sustained  except  by  the  proof  of  fraud  in  fact.  I  have 
already  given  my  reasons  for  thinking  that,  until  recent  times,  at  all 
events,  the  judges  who  spoke  of  fraud  in  law  did  not  mean  to  ex- 
clude the  existence  of  fraud  in  fact,  but  only  of  an  intention  to  de- 
fraud or  injure. 

In  the  same  case  Cotton,  L.  J.,  stated  the  law  in  much  the  same 
way  as  he  did  in  the  present  case,  treating  "recklessly"  as  equivalent 
to  "without  any  reasonable  ground  for  believing"  the  statements 
made.  But  the  same  learned  judge,  in  Arkwright  v.  Newbold,  17 
Ch.  Div.  301,  laid  down  the  law  somewhat  differently,  for  he  said: 
"In  an  action  of  deceit  the  representation  to  found  the  action  must 
not  be  innocent ;  that  is  to  say,  it  must  be  made  either  with  knowl- 
edge of  its  being  false,  or  with  a  reckless  disregard  as  to  whether 
it  is  or  is  not  true."  And  his  exposition  of  the  law  was  substantially 
the  same  in  Edgington  v.  Fitzmaurice,  29  Ch.  Div.  459.  In  this  lat- 
ter case  Bowen,  L.  J.,  defined  what  the  plaintiff  must  prove  in  ad- 
dition to  the  falsity  of  the  statement,  as  "secondly,  that  it  was  false 
to  the  knowledge  of  the  defendants,  or  that  they  made  it  not  caring 
whether  it  was  true  or  false." 

It  only  remains  to  notice  the  case  of  Smith  v.  Chadwick,  20  Ch. 
Div.  27,  44,  67.  The  late  master  of  the  rolls  there  said:  "A  man 
may  issue  a  prospectus  or  make  any  other  statement  to  induce  an- 
other to  enter  into  a  contract,  believing  that  his  statement  is  true, 
and  not  intending  to  deceive ;  but  he  may  through  carelessness  have 
made  statements  which  are  not  true,  and  which  he  ought  to  have 
known  were  not  true,  and  if  he  does  so  he  is  liable  in  an  action  for 
deceit.  He  cannot  be  allowed  to  escape  merely  because  he  had  good 
intentions,  and  did  not  intend  to  defraud."  This,  like  everything 
else  that  fell  from  that  learned  judge,  is  worthy  of  respectful  consid- 
eration. With  the  last  sentence  I  quite  agree,  but  I  cannot  assent  to 
the  doctrine  that  a  false  statement  made  through  carelessness,  and 
which  ought  to  have  been  known  to  be  untrue,  of  itself  renders  the 
person  who  makes  it  liable  to  an  action  for  deceit.  This  does  not 
seem  to  me  by  any  means  necessarily  to  amount  to  fraud,  without 
which  the  action  will  not,  in  my  opinion,  lie. 

It  must  be  remembered  that  it  was  not  requisite  for  Sir  George 
Jessel  in  Smith  v.  Chadwick,  20  Ch.  Div.  27,  44,  67,  to  form  an  opin- 
ion whether  a  statement  carelessly  made,  but  honestly  believed,  could 
be  the  foundation  of  an  action  of  deceit.  The  decision  did  not  turn 
on  any  such  point.  The  conclusion  at  which  he  arrived  is  expressed 
in  these  terms :  "On  the  whole,  I  have  come  to  the  conclusion  that 


036  LAW  OF  TORTS. 

this,  although  in  some  respects  inaccurate,  and  in  some  respects  not 
altogether  free  from  imputation  of  carelessness,  was  a  fair,  honest, 
and  bona-  fide  statement  on  the  part  of  the  defendants,  and  by  no 
means  exposes  them  to  an  action  for  deceit."  I  may  further  note 
that  in  the  same  case  Lindley,  L.  J.,  said :  "The  plaintiff  has  to  prove 
— First,  that  the  misrepresentation  was  made  to  him;  secondly,  he 
must  prove  that  it  was  false ;  thirdly,  that  it  was  false  to  the  knowl- 
edge of  the  defendants,  or,  at  all  events,  that  they  did  not  believe  the 
truth  of  it."  This  appears  to  be  a  different  statement  of  the  law 
from  that  which  I  have  just  criticised,  and  one  much  more  in  accord 
with  the  prior  decisions. 

The  case  of  Smith  v.  Chadwick  was  carried  to  your  lordships' 
house.  L.  R.  9  App.  Cas.  187,  190.  Lord  Selborne  thus  laid  down 
the  law :  "I  conceive  that,  in  an  action  of  deceit,  it  is  the  duty  of  the 
plaintiff  to  establish  two  things :  First,  actual  fraud,  which  is  to  be 
judged  of  by  the  nature  and  character  of  the  representations  made, 
considered  with  reference  to  the  object  for  which  they  were  made, 
the  knowledge  or  means  of  knowledge  of  the  person  making  them, 
and  the  intention  which  the  law  justly  imputes  to  every  man  to  pro- 
duce those  consequences  which  are  the  natural  result  of  his  acts ; 
and,  secondly,  he  must  establish  that  this  fraud  was  an  inducing 
cause  to  the  contract."  It  will  be  noticed  that  the  noble  and  learned 
lord  regards  the  proof  of  actual  fraud  as  essential.  All  the  other 
matters  to  which  he  refers  are  elements  to  be  considered  in  determin- 
ing whether  such  fraud  has  been  established.  Lord  Blackburn  in1 
dicated  that,  although  he  nearly  agreed  with  the  master  of  the  rolls, 
the  learned  judge  had  not  quite  stated  what  he  conceived  to  be  the 
law.  He  did  not  point  out  precisely  how  far  he  differed,  but  it  is 
impossible  to  read  his  judgment  in  this  case,  or  in  that  of  Brownlie 
v.  Campbell,  L.  R.  5  App.  Cas.  925,  without  seeing  that  in  his  opinion 
proof  of  actual  fraud  or  of  a  willful  deception  was  requisite. 

Having  now  drawn  attention,  I  believe,  to  all  the  cases  having  a 
material  bearing  upon  the  question  under  consideration,  I  proceed 
to  state  briefly  the  conclusions  to  which  I  have  been  led.  I  think  the 
authorities  establish  the  following  propositions :  First.  In  order  to 
sustain  an  action  of  deceit,  there  must  be  proof  of  fraud,  and  noth- 
ing short  of  that  will  suffice.  Secondly.  Fraud  is  proved  when  it  is 
shown  that  a  false  representation  has  been  made  (1)  knowingly,  or 
(2)  without  belief  in  its  truth,  or  (3)  recklessly,  careless  whether  it  be 
true  or  false.  Although  I  have  treated  the  second  and  third  as  dis- 
tinct cases,  I  think  the  third  is  but  an  instance  of  the  second;  for 
one  who  makes  a  statement  under  such  circumstances  can  have  no 
real  belief  in  the  truth  of  what  he  states.  To  prevent  a  false  state- 
ment being  fraudulent,  there  must,  I  think,  always  be  an  honest  belief 
in  its  truth.  And  this  probably  covers  the  whole  ground,  for  one 
who  knowingly  alleges  that  which  is  false  has  obviously  no  such  lion- 


FRAUD    AND    DECEIT.  637 

est  belief.  Thirdly.  If  fraud  be  proved,  the  motive  of  the  person 
guilty  of  it  is  immaterial.  It  matters  not  that  there  was  no  intention 
to  cheat  or  injure  the  person  to  whom  the  statement  was  made. 

I  think  these  propositions  embrace  all  that  can  be  supported  by  de- 
cided cases  from  the  time  of  Pasley  v.  Freeman,  2  Smith,  Lead.  Cas. 
94,  down  to  Bank  v.  Addie,  L.  R.  1  H.  L.  Sc.  145,  in  1867,  when 
the  first  suggestion  is  to  be  found  that  belief  in  the  truth  of  what 
he  has  stated  will  not  suffice  to  absolve  the  defendant  if  his  belief 
be  based  on  no  reasonable  grounds.  I  have  shown  that  this  view 
was  at  once  dissented  from  by  Lord  Cranworth,  so  that  there  was  at 
the  outset  as  much  authority  against  it  as  for  it.  And  I  have  met 
with  no  further  assertion  of  Lord  Chelmsford's  view  until  the  case  of 
Weir  v.  Bell,  3  Exch.  Div.  238,  where  it  seems  to  be  involved  in 
Lord  Justice  Cotton's  enunciation  of  the  law  of  deceit.  But  no  rea- 
son is  there  given  in  support  of  the  view ;  it  is  treated  as  established 
law.-  The  dictum  of  the  late  master  of  the  rolls  that  a  false  statement, 
made  through  carelessness,  which  the  person  making  it  ought  to  have 
known  to  be  untrue,  would  sustain  an  action  of  deceit,  carried  the 
matter  still  further.  But  that  such  an  action  could  be  maintained 
notwithstanding  an  honest  belief  that  the  statement  made  was  true, 
if  there  were  no  reasonable  grounds  for  the  belief,  was,  I  think,  for 
the  first  time  decided  in  the  case  now  under  appeal. 

In  my  opinion,  making  a  false  statement  through  want  of  care  falls 
far  short  of,  and  is  a  very  different  thing  from,  fraud,  and  the  same 
may  be  said  of  a  false  representation  honestly  believed,  though  on 
insufficient  grounds.  The  whole  current  of  authorities,  with  which 
I  have  so  long  detained  your  lordships,  shows  to  my  mind  conclu- 
sively that  fraud  is  essential  to  found  an  action  of  deceit,  and  that  it 
cannot  be  maintained  where  the  acts  proved  cannot  properly  be  so 
termed. 

At  the  same  time  I  desire  to  say  distinctly  that,  when  a  false  state- 
ment has  been  made,  the  questions  whether  there  were  reasonable 
grounds  for  believing  it,  and  what  were  the  means  of  knowledge  in 
the  possession  of  the  person  making  it,  are  most  weighty  matters 
for  consideration.  The  ground  upon  which  an  alleged  belief  was 
founded  is  a  most  important  test  of  its  reality.  I  can  conceive  many 
cases  where  the  fact  that  an  alleged  belief  was  destitute  of  all  rea- 
sonable foundation  would  suffice  of  itself  to  convince  the  court  that 
it  was  not  really  entertained,  and  that  the  representation  was  a  fraud- 
ulent one.  So,  too,  although  means  of  knowledge  are,  as  was  point- 
ed out  by  Lord  Blackburn  in  Brownlie  v.  Campbell,  L.  R.  5  App. 
Cas.  925,  a  very  different  thing  from  knowledge,  if  I  thought  that  a 
person  making  a  false  statement  had  shut  his  eyes  to  the  facts,  or 
purposely  abstained  from  inquiring  into  them,  I  should  hold  that 
honest  belief  was  absent,  and  that  he  was  just  as  fraudulent  as  if  he 
had  knowingly  stated  that  which  was  false. 


G38  LAW  OF  TORTS. 

I  have  arrived  with  some  reluctance  at  the  conclusion  to  which  I 
have  felt  myself  compelled,  for  I  think  those  who  put  before  the  pub- 
lic a  prospectus  to  induce  them  to  embark  their  money  in  a  commer- 
cial enterprise  ought  to  be  vigilant  to  see  that  it  contains  such  repre- 
sentations only  as  are  in  strict  accordance  with  fact,  and  I  should  be 
very  unwilling  to  give  any  countenance  to  the  contrary  idea.  I  think 
there  is  much  to  be  said  for  the  view  that  this  moral  duty  ought  to 
some  extent  to  be  converted  into  a  legal  obligation,  and  that  the  want 
of  reasonable  care  to  see  that  statements  made  under  such  circum- 
stances are  true  should  be  made  an  actionable  wrong.  But  this  is 
not  a  matter  fit  for  discussion  on  the  present  occasion.  If  it  is  to  be 
done,  the  legislature  must  intervene,  and  expressly  give  a  right  of 
action  in  respect  of  such  a  departure  from  duty.1  It  ought  not,  I 
think,  to  be  done  by  straining  the  law,  and  holding  that  to  be  fraud- 
ulent which  the  tribunal  feels  cannot  properly  be  so  described.  I 
think  mischief  is  likely  to  result  from  blurring  the  distinction  between 
carelessness  and  fraud,  and  equally  holding  a  man  fraudulent  whether 
his  acts  can  or  cannot  be  justly  so  designated. 

It  now  remains  for  me  to  apply  what  I  believe  to  be  the  law  to  the 
facts  of  the  present  case.  The  charge  against  the  defendants  is  that 
they  fraudulently  represented  that,  by  the  special  act  of  parliament 
which  the  company  had  obtained,  they  had  a  right  to  use  steam  or 
other  mechanical  power  instead  of  horses.  The  test  which  I  purpose 
employing  is  to  inquire  whether  the  defendants  knowingly  made  a 
false  statement  in  this  respect,  or  whether,  on  the  contrary,  they  hon- 
estly believed  what  they  stated  to  be  a  true  and  fair  representation  of 
the  facts.  Before  considering  whether  the  charge  of  fraud  is  proved, 
I  may  say  that  I  approach  the  case  of  all  the  defendants,  except 
Wilde,  with  the  inclination  to  scrutinize  their  conduct  with  severity. 
They  most  improperly  received  sums  of  money  from  the  promoters, 
and  this  unquestionably  lays  them  open  to  the  suspicion  of  being 
ready  to  put  before  the  public  whatever  was  desired  by  those  who 
were  promoting  the  undertaking.  But  I  think  this  must  not  be  un- 
duly pressed,  and  when  I  find  that  the  statement  impeached  was  con- 
curred in  by  one  whose  conduct  in  the  respect  I  have  mentioned  was 
free  from  blame,  and  who  was  under  no  similar  pressure,  the  case 
assumes,  I  think,  a  different  complexion.  I  must  further  remark  that 
the  learned  judge  who  tried  the  cause,  and  who  tells  us  that  he  care- 

i  Since  this  decision  was  rendered,  an  act  of  Parliament  has  been  passed 
to  get  rid  of  the  effect  of  it,  so  far  as  directors  and  promoters  issuing  a  pro- 
spectus on  the  one  hand,  and  persons  taking  shares  and  debentures  on  the 
other  hand,  are  concerned.  In  such  cases  the  plaintiff  has  only  to  prove,  in 
addition  to  damage,  that  a  material  statement  of  fact  is  untrue,  and  he  can 
maintain  an  action,  unless  the  defendant  can  establish  that  he  had  reasonable 
ground  to  believe,  and  did  believe,  the  statement  to  be  true.  McConnell  v. 
Wright  [1903]  1  Ch.  546,  558.  In  other  classes  of  cases,  however,  the  decision 
in  Derry  v.  Peek  remains  applicable. 


FRAUD    AND    DECEIT.  639 

fully  watched  the  demeanor  of  the  witnesses  and  scanned  their  evi- 
dence, came  without  hesitation  to  the  conclusion  that  they  were  wit- 
nesses of  truth,  and  that  their  evidence,  whatever  may  be  its  effect, 
might  safely  be  relied  on.  An  opinion  so  formed  ought  not  to  be 
differed  from  except  on  very  clear  grounds,  and,  after  carefully  con- 
sidering the  evidence,  I  see  no  reason  to  dissent  from  Stirling,  J.'s, 
conclusion.  I  shall  therefore  assume  the  truth  of  their  testimony.  , 

I  agree  with  the  court  below  that  the  statement  made  did  not  ac- 
curately convey  to  the  mind  of  a  person  reading  it  what  the  rights  of 
the  company  were,  but,  to  judge  whether  it  may  nevertheless  have 
been  put  forward  without  subjecting  the  defendants  to  the  imputa- 
tion of  fraud,  your  lordships  must  consider  what  were  the  circum- 
stances. By  the  general  tramways  act  of  1870  it  is  provided  that  all 
carriages  used  on  any  tramway  shall  be  moved  by  the  power  pre- 
scribed by  the  special  act,  and,  where  no  such  power  is  prescribed, 
by  animal  power  only.  33  &  34  Viet.  c.  78,  §  34.  In  order,  there- 
fore, to  enable  the  company  to  use  steam-power,  an  act  of  parlia- 
ment had  to  be  obtained  empowering  its  use.  This  had  been  done, 
but  the  power  was  clogged  with  the  condition  that  it  was  only  to  be 
used  with  the  consent  of  the  board  of  trade.  It  was  therefore  incor- 
rect to  say  that  the  company  had  the  right  to  use  steam.  They  would 
only  have  that  right  if  they  obtained  the  consent  of  the  board  of 
trade.  But  it  is  impossible  not  to  see  that  the  fact  which  would  im- 
press itself  upon  the  minds  of  those  connected  with  the  company  was 
that  they  had,  after  submitting  the  plans  to  the  board  of  trade,  ob- 
tained a  special  act  empowering  the  use  of  steam.  It  might  well  be 
that  the  fact  that  the  consent  of  the  bo^rd  of  trade  was  necessary 
would  not  dwell  in  the  same  way  upon  their  minds,  if  they  thought 
that  the  consent  of  the  board  would  be  obtained  as  a  matter  of  course 
if  its  requirements  were  complied  with,  and  that  it  was  therefore  a 
mere  question  of  expenditure  and  care.  The  provision  might  seem 
to  them  analogous  to  that  contained  in  the  general  tramways  act, 
and  I  believe  in  the  railways  act  also,  prohibiting  the  line  being  open- 
ed until  it  had  been  inspected  by  the  board  of  trade,  and  certified  fit 
for  traffic,  which  no  one  would  regard  as  a  condition  practically  lim- 
iting the  right  to  use  the  line  for  the  purpose  of  a  tramway  or  rail- 
way. I  do  not  say  that  the  two  cases  are  strictly  analogous  in  point 
of  law,  but  they  may  well  have  been  thought  so  by  business  men. 

I  turn,  now,  to  the  evidence  of  the  defendants.  I  will  take  first 
that  of  Mr.  Wilde,  whose  conduct  in  relation  to  the  promotion  of  the 
company  is  free  from  suspicion.  He  is  a  member  of  the  bar,  and  a 
director  of  one  of  the  London  tramway  companies.  He  states  that 
he  was  aware  that  the  consent  of  the  board  of  trade  was  necessary, 
but  that  he  thought  that  such  consent  had  been  practically  given, 
inasmuch  as,  pursuant  to  the  standing  orders,  the  plans  had  been 
laid  before  the  board  of  trade,  with  the  statement  that  it  was  intended 


G40  LAW  OF  TORTS. 

to  use  mechanical  as  well  as  horse  power,  and  no  objection  having 
been  raised  by  the  board  of  trade,  and  the  bill  obtained,  he  took  it 
for  granted  that  no  objection  would  be  raised  afterwards,  provided 
the  works  were  properly  carried  out.  He  considered,  therefore,  that, 
practically  and  substantially,  they  had  the  right  to  use  steam,  and 
that  the  statement  was  perfectly  true.  Mr.  Pethick's  evidence  is  to 
much  the  same  effect.  He  thought  the  board  of  trade  had  no  more 
right  to  refuse  their  consent  than  they  would  in  the  case  of  a  railway ; 
that  they  might  have  required  additions  or  alterations;  but  that,  on 
any  reasonable  requirements  being  complied  with,  they  could  not  re- 
fuse their  consent.  It  never  entered  his  thoughts  that,  after  the 
board  had  passed  their  plans,  with  the  knowledge  that  it  was  pro- 
posed to  use  steam,  they  would  refuse  their  consent.  Mr.  Moore 
states  that  he  was  under  the  impression  that  the  passage  in  the  pro- 
spectus represented  the  effect  of  section  35  of  the  act,  inasmuch  as 
he  understood  that  the  consent  was  obtained.  He  so  understood 
from  the  statement  made  at  the  board  by. the  solicitors  to  the  com- 
pany, to  the  general  effect  that  everything  was  in  order  for  the  use 
of  steam,  that  the  act  had  been  obtained  subject  to  the  usual  restric- 
tions, and  that  they  were  starting  as  a  tramway  company,  with  full 
power  to  use  steam  as  other  companies  were  doing.  Mr.  Wakefield, 
according  to  his  evidence,  believed  that  the  statement  in  the  prospec- 
tus was  fair;  he  never  had  a  doubt  about  it.  It  never  occurred  to 
him  to  say  anything  about  the  consent  of  the  board  of  trade,  because, 
as  they  had  got  the  act  of  parliament  for  steam,  he  presumed  at  once 
that  they  would  get  it.  Mr.  Derry's  evidence  is  somewhat  confused, 
but  .1  think  the  fair  effect  of  it  is  that,  though  he  was  aware  that  un- 
der the  act  the  consent  of  the  board  of  trade  was  necessary,  he 
thought  that,  the  company  having  obtained  their  act,  the  board's  con- 
sent would  follow  as  a  matter  of  course,  and  that  the  question  of 
such  consent  being  necessary  never  crossed  his  mind  at  the  time  the 
prospectus  was  issued.  He  believed  at  that  time  that  it  was  correct 
to  say  they  had  the  right  to  use  steam. 

As  I  have  said,  Stirling,  J.,  gave  credit  to  these  witnesses,  and  I 
see  no  reason  to  differ  from  him.  What  conclusion  ought  to  be 
drawn  from  their  evidence?  I  think  they  were  mistaken  in  suppos- 
ing that  the  consent  of  the  board  of  trade  would  follow  as  a  matter 
of  course,  because  they  had  obtained  their  act.  It  was  absolutely  in 
the  discretion  of  the  board  whether  such  consent  should  be  given. 
The  prospectus  was  therefore  inaccurate.  But  that  is  not  the  ques- 
tion. If  they  believed  that  the  consent  of  the  board  of  trade  was 
practically  concluded  by  the  passing  of  the  act,  has  the  plaintiff  made 
out,  which  it  was  for  him  to  do,  that  they  have  been  guilty  of  a  fraud- 
ulent misrepresentation?  I  think  not.  I  cannot  hold  it  proved  as 
to  any  one  of  them  that  he  knowingly  made  a  false  statement,  or  one 
\vhich  he  did  not  believe  to  be  true,  or  was  careless  whether  what  he 


FRAUD    AND    DECEIT.  641 

stated  was  true  or  false.  In  short,  I  think  they  honestly  believed 
that  what  they  asserted  was  true,  and  I  am  of  opinion  that  the  charge 
of  fraud  made  against  them  has  not  been  established.  It  is  not  un- 
worthy of  note  that,  in  his  report  to  the  board  of  trade,  Gen.  Hutch- 
inson,  who  was  obviously  aware  of  the  provisions  of  the  special  act, 
falls  into  the  very  same  inaccuracy  of  language  as  is  complained  of 
in  the  defendants,  for  he  says:  "The  act  of  1882  gives  the  company 
authority  to  use  mechanical  power  over  all  their  system."  I  quite 
admit  that  the  statements  of  witnesses  as  to  their  belief  are  by  no 
means  to  be  accepted  blindfold.  The  probabilities  must  be  consid- 
ered. Whenever  it  is  necessary  to  arrive  at  a  conclusion  as  to  the 
state  of  mind  of  another  person,  and  to  determine  whether  his  belief 
under  given  circumstances  was  such  as  he  alleges,  we  can  only  do  so 
by  applying  the  standard  of  conduct  which  our  own  experience  of 
the  ways  of  men  has  enabled  us  to  form, — by  asking  ourselves  wheth- 
er a  reasonable  man  would  be  likely,  under  the  circumstances,  so  to 
believe.  I  have  applied  this  test.  With  that  I  have  a  strong  convic- 
tion that  a  reasonable  man,  situated  as  the  defendants  were,  with 
their  knowledge  and  means  of  knowledge,  might  well  believe  what 
they  state  they  did  believe,  and  consider  that  the  representation  made 
was  substantially  true.  Adopting  the  language  of  Jessel,  M.  R.,  in 
Smith  v.  Chadwick,  20  Ch.  Div.  67,  I  conclude  by  saying  that,  on 
the  whole,  I  have  come  to  the  conclusion  that  the  statement,  "though 
in  some  respects  inaccurate  and  not  altogether  free  from  imputation 
of  carelessness,  was  a  fair,  honest,  and  bona  fide  statement  on  the 
part  of  the  defendants,  and  by  no  means  exposes  them  to  an  action 
for  deceit."  I  think  the  judgment  of  the  court  of  appeal  should  be 
reversed. 

Order  of  the  court  of  appeal  reversed;  order  of  Stirling,  J.,  re- 
stored; the  respondent  to  pay  to  the  appellants  their  costs  below 
and  in  this  house ;  cause  remitted  to  the  chancery  division. 

(There  is  general  agreement  among  the  American  authorities  in  support  of 
the  preliminary  propositions  laid  down  by  Lord  Herschell  in  the  above  case, 
viz.,  that  "fraud  is  proved  when  it  is  shown  that  a  false  representation  has 
been  made  [1]  knowingly,  or  [2]  without  belief  in  its  truth,  or  [3]  recklessly, 
careless  whether  it  be  true  or  false."  Cooper  v.  Schlesinger,  111  U.  S.  148, 
4  Sup.  Ct.  360,  28  L.  Ed.  382;  Kountze  v.  Kennedy,  147  N.  Y.  124,  41  N.  E. 
414,  29  L.  R.  A.  360,  49  Am.  St  Rep.  651;  Brackett  v.  Griswold,  112  N.  Y. 
454,  20  N.  E.  376;  Cooley  on  Torts  [2d  Ed.]  582-587.  Various  forms  of  stat- 
ing the  rule  as  to  liability  may  properly  be  deemed  to  come  under  one  or  the 
other  of  these  heads.  A  common  form  of  statement  is  this:  "A  person  who 
makes  representations  of  material  facts,  assuming  or  intending  to  convey  the 
impression  that  he  has  actual  knowledge  of  the  existence  of  such  facts,  when 
he  is  conscious  that  he  has  no  such  knowledge,  is  as  much  responsible  for 
the  injurious  consequences  of  such  representations  to  one  who  believes  and 
acts  upon  them  as  if  he  had  actual  knowledge  of  their  falsity."  Lehigh  Zinc 
&  Iron  Co.  v.  Bamford,  150  U.  S.  665,  14  Sup.  Ct  219,  37  L.  Ed.  1215;  Marsh 
v.  Falker,  40  N.  Y.  562;  Powell  v.  Linde  Co.,  58  App.  Div.  261,  68  N.  Y.  Supp. 
1070,  affirmed  171  N.  Y.  675,  64  N.  E.  1125;  Caldwell  v.  Henry,  76  Mo.  254; 
CHASE  (2o  ED.) — 41 


642  LAW  OF  TORTS. 

Cabot  v.  Christie,  42  Vt  121,  1  Am.  Rep.  313;  Cowley  v.  Smyth,  46  N.  J.  Law, 
380,  50  Am.  Rep.  432.  But  in  cases  like  Derry  v.  Peek,  ante,  page  626,  where 
the  person  making  the  false  statement  has  a  bona  fide  belief  that  it  is  true, 
but  his  belief  is  formed  carelessly  or  without  reasonable  grounds,  the  Ameri 
can  cases  are  not  in  accord  as  to  whether  this  constitutes  fraud.  In  New 
York  it  is  held  that  "where  a  party  represents  a  material  fact  to  be  true  to  his 
personal  knowledge,  as  distinguished  from  belief  or  opinion,  when  he  does 
not  know  whether  it  is  true  or  not,  and  it  is  actually  untrue,  he  is  guilty  of 
falsehood,  even  if  he  believes  it  to  6e  true;  and  if  the  statement  is  thus  made 
with  the  intention  that  it  shall  be  acted  upon  by  another,  who  does  so  act  upon 
it  to  his  injury,  the  result  is  actionable  fraud"  [Hadcock  v.  Osrner,  153  N.  Y. 
604,  47  N.  E.  923 ;  cf.  Cabot  v.  Christie,  42  Vt.  121,  1  Am.  Rep.  313] ;  but 
if  a  person's  belief  in  the  truth  of  the  statement  made  by  him  be  based  upon 
icasonable  grounds,  no  fraud  is  committed  [Kountze  v.  Kennedy,  147  N.  Y. 
124,  133,  41  N.  B.  414,  29  L.  R.  A.  360,  49  Am.  St.  Rep.  651].  In  Pennsylvania 
it  is  declared  that  a  person  cannot  be  "convicted  of  fraud  because  he  enter- 
tained a  belief  which  was  not  well  founded.  Whether  he  had  a  belief,  and 
honestly  expressed  it,  was  in  issue,  but  the  reasonableness  of  his  ground  for 
that  belief  could  not  be  called  into  question."  Lamberton  v.  Dunham,  165 
Pa.  129,  30  Atl.  716;  Cox  v.  Highley,  100  Pa.  249;  but  see  Erie  City  Iron 
Works  v.  Barber,  106  Pa.  125,  51  Am.  Rep.  508.  In  New  Jersey  it  is  held 
that  there  can  be  no  fraud  without  moral  delinquency;  in  other  words,  that 
there  is  no  actual  fraud  which  is  not  also  moral  fraud  [Crowell  y.  Jackson, 
53  N.  J.  Law,  656,  23  Atl.  426] ;  and  that,  where  the  statement  is  concerning 
a  matter  not  susceptible  of  exact  knowledge,  as,  e.  g.,  with  regard  to  the  credit 
and  solvency  of  a  third  person,  the  question  is  wholly  one  of  good  or  bad 
faith,  and  that  the  person  making  the  statement  is  not  liable,  if  he  acted  in 
good  faith  and  in  the  honest  belief  that  it  was  true  [Cowley  v.  Smyth,  46 
N.  J.  Law,  380,  50  Am.  Rep.  432].  In  Iowa  it  is  held  that  to  prove  fraud  it 
is  not  enough  to  show  that  the  representations  were  made  "through  mistake, 
ignorance,  or  carelessness,  or  without  reason  to  believe  that  they  were  true." 
Boddy  v.  Henry,  113  Iowa,  462,  85  N.  W.  771;  Mentzer  v.  Sargeant,  115  Iowa, 
527,  88  N.  W.  1068.  In  Michigan,  on  the  contrary,  "it  is  immaterial  whether 
a  false  representation  is  made  innocently  or  fraudulently,  if  by  its  means 
the  party  to  whom  it  is  made  is  injured.  Totten  v.  Burhans,  91  Mich.  495, 
51  N.  W.  1119.  In  some  other  states,  also,  false  statements  have  been  held 
actionable  if  they  were  made  without  reasonable  grounds  to  believe  them  to 
be  true.  Trimble  v.  Reid,  97  Ky.  713,  31  S.  W.  861;  Rowell  v.  Chase,  61  N. 
H.  135;  Ramsey  v.  Wallace,  100  N.  C.  75,  6  S.  E.  638.  As  to  the  law  of  Mas- 
sachusetts and  various  other  states,  see  the  next  case  and  the  note  thereto.) 


2.  Massachusetts  rule. 

(117  Mass.  195.) 

LITCHFIELD  v.  HUTCHINSON. 
(Supreme  Judicial  Court  of  Massachusetts.    February  1,  1875.) 

FRAUD — WHEN  ACTION  OF  DECEIT  LIES. 

To  sustain  an  action  of  deceit  to  recover  damages,  it  is  not  always 
necessary  to  prove  that  the  defendant  knew  that  the  facts  stated  by  him 
were  false.  If  he  states,  as  of  his  own  knowledge,  material  facts  sus- 


FRAUD    AND    DECEIT.  643 

ceptible  of  knowledge,  which  are  false,  It  is  a  fraud  which  renders  him 
liable  to  the  party  who  relies  and  acts  upon  the  statement  as  true,  and 
it  is  no  defense  that  he  believed  the  facts  to  be  true. 

Exceptions  from  Superior  Court,  Middlesex  County. 

Action  of  tort  brought  by  Paul  F.  Litchfield  against  Nathaniel 
Hutchinson  for  deceit  in  the  sale  of  a  horse.  A  verdict  was  returned 
for  defendant.  Plaintiff  alleged  exceptions. 

MORTON,  J.  This  is  an  action  of  tort  in  which  the  plaintiff  al- 
leges that  he  was  induced  to  buy  a  horse  of  the  defendant  by  repre- 
sentations made  by  him  that  the  horse  was  sound,  and  that  the  horse 
was,  in  fact,  unsound  and  lame,  all  of  which  the  defendant  well  knew. 
To  sustain  such  an  action,  it  is  necessary  for  the  plaintiff  to  prove 
that  the  defendant  made  false  representations,  which  were  material, 
with  a  view  to  induce  the  plaintiff  to  purchase,  and  that  the  plaintiff 
was  thereby  induced  to  purchase.  But  it  is  not  always  necessary  to 
prove  that  the  defendant  knew  that  the  facts  stated  by  him  were  false. 
If  he  states,  as  of  his  own  knowledge,  material  facts  susceptible  of 
knowledge,  which  are  false,  it  is  a  fraud  which  renders  him  liable  to 
the  party  who  relies  and  acts  upon  the  statement  as  true,  and  it  is  no 
defense  that  he  believed  the  facts  to  be  true.  The  falsity  and  fraud 
consist  in  representing  that  he  knows  the  facts  to  be  true,  of  his  own 
knowledge,  when  he  has  no  such  knowledge.  Page  v.  Bent,  2  Mete. 
(Mass.)  371;  Stone  v.  Denny,  4  Mete.  (Mass.)  151;  Milliken  v. 
Thorndike,  103  Mass.  382 ;  Fisher  v.  Mellen,  Id.  503. 

In  the  case  at  bar  the  plaintiff  asked  the  court  to  instruct  the  jury 
"that  if  the  defendant  made  a  representation  of  the  soundness  of  the 
horse,  as  of  his  own  knowledge,  and  the  jury  are  satisfied  that  he 
might  have  known  by  reasonable  inquiry  and  examination  whether 
he  was  sound  or  not,  and  the  horse  was  not  sound  as  a  matter  of 
fact,  and  if  the  plaintiff  relied  on  such  representations,  and  was  in- 
duced thereby  to  purchase  the  horse,  and  thereby  sustained  damage, 
then  the  defendant  is  liable."  We  are  of  opinion  that  this  instruction 
should  have  been  given  in  substance.  If  the  defect  in  the  horse  was 
one  which  might  have  been  known  by  reasonable  examination,  it 
was  a  matter  susceptible  of  knowledge ;  and  a  representation  by  the 
defendant,  made  as  of  his  knowledge,  that  such  defect  did  not  exist, 
would,  if  false,  be  a  fraud  for  which  he  would  be  liable  to  the  plain- 
tiff, if  made  with  a  view  to  induce  him  to  purchase,  and  if  relied  on 
by  him.  A  false  representation  of  this  character  is  sufficiently  set 
forth  in  the  declaration  to  constitute  a  cause  of  action,  without  the 
further  allegation  that  the  defendant  well  knew  the  representations 
to  be  false.  It  is  not  necessary  that  all  the  allegations  should  be 
proved  if  enough  are  proved  to  make  out  a  cause  of  action.  The  in- 
structions given  upon  the  subject  embraced  in  this  prayer  required 
the  plaintiff  to  prove,  not  only  that  the  defendant  made  the  false  rep- 


644  LAW  OF  TORTS. 

reservations  alleged,  as  of  his  own  knowledge,  but  also  that  the  de- 
fendant knew  that  they  were  false,  or  that  he  did  not  honestly  believe 
them  to  be  true.     In  this  respect  the  instructions  were  erroneous. 
Exceptions  sustained. 

(I  have  called  this  the  "Massachusetts  rule,"  and  placed  it  In  contrast  with 
the  "English  rule,"  because  in  England  honest  belief  in  the  truth  of  the  state- 
ment made,  without  previous  inquiry  to  ascertain  its  truth,  is  declared  not 
to  be  fraud  [see  Angus  v.  Clifford  (1891)  2  Ch.  449],  while  by  this  Massa- 
chusetts case  and  various  others  "it  is  no  defense"  that  the  one  making  the 
statement  "believed  it  to  be  true,"  the  matter  being  "susceptible  of  knowl- 
edge" [Chatham  Furnace  Co.  v.  Moffatt,  147  Mass.  403,  18  N.  E.  1G8,  9  Am.  St. 
Rep.  727,  citing  many  cases].  But  in  Nash  v.  Minnesota  Title  Ins.  Co.,  163 
Mass.  574,  40  N.  E.  1039,  28  L.  R.  A.  753,  47  Am.  St.  Rep.  489,  Derry  v.  Peek, 
ante,  p.  626,  is  considered,  and  it  is  said:  "By  the  law  of  England  mere 
ignorance,  or  negligence,  or  stupidity  on  the  part  of  the  person  making  the  rep- 
resentations does  not  constitute  fraud  if  he  intends  honestly  to  tell  the  truth, 
although  his  statements,  understood  according  to  their  seeming  meaning,  may  be 
ever  so  misleading.  In  this  particular  the  decisions  of  this  commonwealth  are 
of  similar  import."  In  a  later  decision,  however,  the  same  court  declares: 
"If  a  statement  of  a  fact  which  is  susceptible  of  actual  knowledge  is  made 
as  of  one's  own  knowledge,  and  is  false,  it  may  be  made  a  foundation  of  an 
action  1'or  deceit  without  further  proof  of  an  actual  intent  to  deceive."  Weeks 
v.  Currier,  172  Mass.  53,  51  N.  E.  416.  Laying  such  stress  on  the  words 
"susceptible  of  knowledge"  certainly  implies  that  as  to  matters  of  this  kind 
cne  must  be  free  from  negligence,  and  carefully  investigate  and  learn  the 
iruth  before  making  the  representation.  In  Iowa  this  doctrine  has  been 
criticised  as  follows:  "To  hold  that  defendant,  in  an  action  of  deceit,  is 
liable  for  false  statements,  the  falsity  of  which  he  might  have  known  by  in- 
vestigation, but  which  he  in  fact  believed  to  be  true,  is  to  put  a  liability  on  one 
for  what  he  says  in  good  faith,  under  circumstances  not  making  it  his  duty 
to  make  any  statement  whatever.  If  liability  in  such  cases  is  to  be  predicat- 
ed on  the  question  whether  the  party  making  the  representation  might  have 
known  of  its  falsity,  then  the  greatest  uncertainty  must  result  as  to  how  much 
opportunity  for  knowledge  is  necessary  to  render  him  liable."  Boddy  v. 
Henry,  113  Iowa,  462,  85  N.  W.  771,  53  L.  R.  A.  769. 

This  so-called  Massachusetts  doctrine  has  been  adopted  in  a  number  of 
the  states.  Kirkpatrick  v.  Reeves,  121  Ind.  280,  22  N.  E.  139;  Bullitt  v.  Far- 
rar,  42  Minn.  8,  43  N.  W.  566,  6  L.  R.  A.  149,  18  Am.  St.  Rep.  485;  Davis  v. 
Nuzum,  72  Wis.  439,  40  N.  W.  497,  1  L.  R.  A.  774;  Montreal  River  Lumber 
Co.  v.  Mihills,  80  Wis.  540,  50  N.  W.  507;  Rowell  v.  Chase,  61  N.  H.  135; 
cf.  Cowley  v.  Smyth,  46  N.  J.  Law,  380,  50  Am.  Rep.  432. 

To  make  a  man  liable  for  fraud,  it  is  not  necessary  that  he  should  have 
been  actuated  by  a  motive  of  gain  for  himself,  or  of  injury  to  the  plaintiff 
[Cowley  v.  Smyth,  46  N.  J.  Law,  380,  50  Am.  Rep.  432] ;  nor  need  he  have  de- 
rived any  benefit  from  his  act  [New  York  Land  Imp.  Co.  v.  Chapman,  118 
N.  Y.  288,  23  N.  E.  187 ;  Hindman  v.  First  Nat.  Bank,  112  Fed.  931,  50  C.  C. 
A!  623,  57  L.  R.  A.  108;  Leonard  v.  Springer,  197  111.  532,  64  N.  E.  299].) 


FRAUD    AND    DECEIT.  645 


II.  FRAUD  BY  SILENCE. 

(94  Mo.  423,  7  S.  W.  421.) 

GRIGSBY  v.  STAPLETON. 

(Supreme  Court  of  Missouri.     March  5,  1888.) 

SALE — FRAUDULENT  CONCEALMENT  OF  LATENT  DEFECT — CAVEAT  EMPTOB. 

Plaintiff  sold  cattle  to  defendant  at  a  sound  price,  knowing  that  thoy 
had  Texas  fever,  and  that  some  of  them  had  died  from  the  disease.  De- 
fendant did  not  know  that  they  were  diseased,  nor  that  any  had  died. 
Texas  fever  is  a  disease  not  easily  detected,  except  by  those  acquainted 
with  it.  Held,  a  fraudulent  concealment  by  plaintiff  of  a  latent  defect, 
and  that  the  doctrine  of  caveat  emptor  did  not  apply. 

Appeal  from  Circuit  Court,  Nodaway  County;  H.  S.  Kelley, 
Judge. 

Suit  by  Francis  J.  Grigsby  against  James.  Stapleton.  Judgment 
for  plaintiff,  and,  after  motion  for  a  new  trial,-  defendant  appeals. 

BLACK,  J.  This  was  a  suit  in  two  counts.  The  first  declares  for 
the  contract  price  of  100  head  of  cattle  sold  by  the  plaintiff  to  the 
defendant ;  the  second  seeks  to  recover  the  value  of  the  same  cattle. 
The  contract  price,  as  well  as  the  value,  is  alleged  to  have  been  $3,- 
431.25.  The  answer  is  — First,  a  general  denial;  second,  fraudulent 
representation  as  to  the  health  and  condition  of  the  cattle;  third, 
fraudulent  concealment  of  the  fact  that  they  had  the  Spanish  or  Tex- 
as fever ;  fourth,  tender  of  their  value  in  their  diseased  condition. 
Plaintiff  purchased  105  head  of  cattle  at  the  stock-yards  in  Kansas 
City  on  Friday,  the  25th  of  July,  1884,  at  $3.60  per  cwt.  He  shipped 
them  to  Barnard  on  Saturday.  Mr.  Ray,  plaintiff's  agent,  attended 
to  the  shipment,  and  accompanied  the  cattle.  Ray  says  it  was  reported 
in  the  yards,  before  he  left  Kansas  City,  that  the  cattle  were  sick  with 
Texas  fever ;  some  persons  said  they  were  sick,  and  some  said  they 
were  not.  When  the  cattle  arrived  at  Barnard,  Ray  told  the  plaintiff  of 
the  report,  and  that  the  cattle  were  in  bad  condition;  that  one  died 
in  the  yards  at  Kansas  City,  before  loading,  and  another  died  in  the 
cars  on  the  way.  On  Sunday  morning  the  plaintiff  started  with  them 
to  his  home.  After  driving  them  a  mile  or  so,  he  says  he  concluded 
to  and  did  drive  them  back  to  the  yards,  because  they  were  wild. 
One  of  them  died  on  this  drive,  and  two  more  died  in  the  pen  at  Bar- 
nard before  the  sale  to  defendant.  There  is  much  evidence  tending 
to  show  that  plaintiff  drove  the  cattle  back,  because  he  was  afraid  to 
take  them  to  his  neighborhood,  and  that  he  knew  they  were  diseased, 
and  dying  from  the  fever.  He  made  no  disclosure  of  the  fact  that  the 
cattle  were  sick  to  defendant,  nor  that  they  were  reported  to  have 
the  fever.  Defendant  bargained  for  the  cattle  on  Sunday  afternoon, 
and  on  Monday  morning  completed  the  contract  at  $3.75  per  cwt., 


646  LAW  OF  TORTS. 

and  at  once  shipped  them  to  Chicago.  Thirty  died  on  the  way; 
twenty  were  condemned  by  the  health  officer.  It  is  shown  beyond 
all  question  that  they  all  had  the  Texas  fever.  The  court,  by  the  first 
instruction  given  at  the  request  of  the  plaintiff,  told  the  jury  that  if 
"plaintiff  made  no  representations  to  defendant  as  to  the  health  or 
condition  of  said  cattle  to  influence  defendant  to  believe  said  cattle 
were  sound  or  in  healthy  condition,  but,  on  the  contrary,  defendant 
bought  said  cattle  on  actual  view  of  the  same,  and  relying  on  his  own 
judgment  as  to  their  health  and  condition,  then  the  jury  will  find  for 
plaintiff;  *  *  *  and,  if  the  cattle  were  bought  by  the  defendant 
in  the  manner  above  stated,  it  makes  no  difference  whether  said  cat- 
tle, or  any  of  them,  were,  at  the  time  of  said  sale,  affected  with  Texas 
fever  or  other  disease,  or  whether  plaintiff  did  or  did  not  know  of 
their  being  so  diseased,  as,  under  such  circumstances,  he  would  buy 
at  his  own  risk  and  peril." 

Caveat  emptor  is  the  general  rule  of  the  common  law.  If  defects  in 
the  property  sold  are  patent,  and  might  be  discovered  by  the  exer- 
cise of  ordinary  attention,. and  the  buyer  has  an  opportunity  to  in- 
spect the  property,  the  law  does  not  require  the  vendor  to  point  out 
defects.  But  there  are  cases  where  it  becomes  the  duty  of  the  seller 
to  point  out  and  disclose  latent  defects.  Parsons  says  the  rule  seems 
to  be  that  a  concealment  or  misrepresentation  as  to  extrinsic  facts 
which  affect  the  market  value  of  the  things  sold  is  not  fraudulent, 
while  the  same  concealment  of  defects  in  the  articles  themselves 
would  be  fraudulent.  2  Pars.  Cont.  (6th  Ed.)  775.  When  an  article 
is  sold  for  a  particular  purpose,  the  suppression  of  a  fact  by  the  ven- 
dor, which  fact  makes  the  article  unfit  for  the  purpose  for  which  it 
was  sold,  is  a  deceit ;  and,  as  a  general  rule,  a  material  latent  defect 
must  be  disclosed  when  the  article  is  offered  for  sale,  or  the  sale  will 
be  avoided.  1  Whart.  Cont.  §  248.  The  sale  of  animals  which  the 
seller  knows,  but  the  purchaser  does  not,  have  a  contagious  disease, 
should  be  regarded  as  a  fraud,  when  the  fact  of  the  disease  is  not  dis- 
closed. Cooley,  Torts,  481.  Kerr  says:  "Defects,  however,  which 
are  latent,  or  circumstances  materially  affecting  the  subject-matter  of 
a  sale,  of  which  the  purchaser  has  no  means,  or  at  least  has  no  equal 
means,  of  knowledge,  must,  if  known  to  the  seller,  be  disclosed." 
Kerr,  Fraud  &  M.  (Ed.  by  Bump,)  101.  In  Cardwell  v.  McClelland, 
3  Sneed,  150,  the  action  was  for  fraud  in  the  sale,  of  an  unsound  horse. 
The  court  had  instructed  that  if  the  buyer  relies  upon  his  own  judg- 
ment and  observations,  and  the  seller  makes  no  representations  that 
are  untrue,  or  says  nothing,  the  buyer  takes  the  property  at  his  own 
risk.  This  instruction  was  held  to  be  erroneous,  the  court  saying, 
"If  the  seller  knows  of  a  latent  defect  in  the  property  that  could  not 
be  discovered  by  a  man  of  ordinary  observation,  he  is  bound  to  dis- 
close it."  In  Jeffrey  v.  Bigelow,  13  Wend.  518,  28  Am.  Dec.  476,  the 
defendants,  through  their  agent,  sold  a  flock  of  sheep  to  the  plaintiff. 


FRAUD    AND    DECEIT.  647 

Soon  after  the  sale  a  disease  known  as  the  "scab"  made  its  appear- 
ance among  the  sheep.  It  was  in  substance  said,  had  the  defendants 
made  the  sale  in  person,  and  known  the  sheep  were  diseased,  it  would 
have  been  their  duty  to  have  informed  the  purchaser;  and  the  de- 
fendants were  held  liable  for  the  deceit.  In  the  case  of  McAdams  v. 
Gates,  24  Mo.  223,  the  plaintiff  made  an  exchange  or  swap  for  a  filly, 
unsound  from  loss  of  her  teeth.  The  court,  after  a  careful  review  of 
the  authorities  as  they  then  stood,  announced  this  conclusion:  "If 
the  defect  complained  of  in  the  present  case  was  unknown  to  the 
plaintiff,  and  of  such  a  character  that  he  would  not  have  made  the 
exchange  had  he  known  of  it,  and  was  a  latent  defect  such  as  would 
have  ordinarily  escaped  the  observation  of  men  engaged  in  buying 
horses,  and  the  defendant,  knowing  this,  allowed  the  plaintiff  to  ex- 
change without  communicating  the  defect,  he  was  guilty  of  a  fraud- 
ulent concealment,  and  must  answer  for  it  accordingly."  This  case 
was  followed,  and  the  principle  reasserted,  in  Barren  v.  Alexander, 
27  Mo.  530.  Hill  v.  Balls,  2  Hurl.  &  N.  299,  seems  to  teach  a  differ- 
ent doctrine;  but  the  cases  in  this  court,  supported  as  they  are,  must 
be  taken  as  the  established  law  of  this  state. 

There  is  no  claim  in  this  case  that  defendant  knew  these  cattle  were 
diseased.  It  seems  to  be  conceded  on  all  hands  that  Texas  fever  is 
a  disease  not  easily  detected,  except  by  those  having  had  experience 
with  it.  The  cattle  were  sold  to  the  defendant  at  a  sound  price.  If, 
therefore,  plaintiff  knew  they  had  the  Texas  fever,  or  any  other  dis- 
ease materially  affecting  their  value  upon  the  market,  and  did  not 
disclose  the  same  to  the  defendant,  he  was  guilty  of  fraudulent  con- 
cealment of  a  latent  defect.  It  is  not  necessary  to  this  'defense  that 
there  should  be  any  warranty  or  representations  as  to  the  health  or 
condition  of  the  cattle.  Indeed,  so  far  as  this  case  is  concerned,  if 
the  cattle  had  been  pronounced  by  some  of  the  cattle-men  to  have 
the  Texas  fever,  and,  after  knowledge  of  that  report  came  to  plain- 
tiff, some  of  them  to  his  knowledge  died  from  sickness,  then  he 
should  have  disclosed  these  facts  to  the  defendant.  They  were  cir- 
cumstances materially  affecting  the  value  of  the  cattle  for  the  pur- 
poses for  which  they  were  bought,  or  for  any  other  purpose,  and  of 
which  defendant,  on  all  the  evidence,  had  no  equal  means  of  knowl- 
edge. To  withhold  these  circumstances  was  a  deceit,  in  the  absence 
of  proof  that  defendant  possessed  such  information.  It  follows  that 
the  first  instruction  is  radically  wrong,  and  that  the  second,  given  at 
the  re'quest  of  the  plaintiff,  is  equally  vicious.  The  judgment  is  re- 
versed, and  the  cause  remanded. 

RAY,  J.,  absent.    The  other  judges  concur. 

(The  following  cases  are  to  the  same  effect:  Maynard  v.  Majriard,  49  Vt 
297;  French  v.  Vining,  102  Mass.  132,  3  Am.  Rep.  440;  Downing  v.  Dearborn, 
77  Me.  457,  1  Atl.  407;  Dowling  v.  Lawrence,  58  Wis.  282,  16  N.  W.  552: 


648  LAW  OF  TORTS. 

Stewart  v.  Ranche  Co.,  128  U.  S.  383,  9  Sup.  Ct  101,  32  L.  Ed.  439;  Hanson 
v.  Edgerly,  29  N.  H.  343 ;  cf.  Thomas  v.  Murphy,  87  Minn.  358,  91  N.  W.  1097. 
But  some  cases  are  to  the  contrary:  Paul  v.  Hadley,  23  Barb.  521;  Decker 
v.  Fredericks,  47  N.  J.  Law,  409,  1  Atl.  470;  see  Hadley  v.  Clinton  Importing 
Co.,  13  Ohio  St.  502,  82  Am.  Dec.  454.  It  is  a  general  rule  that  silence  does 
not  constitute  actionable  fraud,  unless  there  be  a  legal  duty  to  make  dis- 
closure. Wood  v.  Amory,  105  N.  Y.  278,  11  N.  E.  636.  But  concealment  of 
defects  by  acts  and  artifices  calculated  to  deceive  is  actual  fraud,  just  as 
much  as  are  positive  false  statements.  Croyle  v.  Moses,  90  Pa.  250,  35  Am. 
Rep.  654. 

In  sales  of  goods  the  maxim  caveat  emptor  is  applied,  and  "unless  there 
be  some  misrepresentation  or  artifice  to  disguise  the  thing  sold,  or  some  war- 
ranty as  to  its  character  or  quality,  the  vendee  is  bound  by  the  sale,  not- 
withstanding the  existence  of  intrinsic  defects  and  vices  known  to  the  vendor 
and  unknown  to  the  vendee  materially  affecting  its  value.  *  *  *  But 
the  rule  of  caveat  emptor  is  applied  with  certain  restrictions,  and  is  not  per- 
mitted to  obtain  in  a  case  where  it  is  plain  it  was  the  duty  of  the  vendor 
to  acquaint  the  vendee  with  a  material  fact  known  to  the  former  and  un- 
known to  the  latter.  It  has  been  held  that  it  is  the  duty  of  one  who  is  about 
to  sell  a  flock  of  sheep  to  inform  the  intending  purchaser  of  the  fact,  if  it  be 
known  to  the  vendor,  of  a  highly  contagious  disease  among  the  sheep  to  be 
sold,  and  that  it  is  a  fraudulent  suppression  of  a  material  fact  if  it  be  know- 
ingly concealed."  Rothmiller  v.  Stein,  143  N.  Y.  581,  591,  38  N.  E.'  718,  720, 
721,  26  L.  R.  A.  148  [stating  also  other  classes  of  cases  in  which  silence 
amounts  to  fraud].  That  caveat  emptor  does  not  apply  when  fraud  is  com- 
mitted, see  also  Stewart  v.  Stearns,  63  N.  H.  99,  56  Am.  Rep.  496;  Lee  v. 
Tarplin,  183  Mass.  52,  66  N.  E.  431 ;  Burroughs  v.  Pacific  Guano  Co.,  81  Ala. 
255,  1  South.  212.  In  Maine  and  Massachusetts,  however,  such  great  latitude 
is  allowed  to  "dealer's  talk"  in  sales  of  property  that  the  rule  caveat  emptor 
has  often  been  applied  when  the  vendor,  indulging  in  such  "talk,"  has  made 
statements  which  he  knew  to  be  false.  Gordon  v.  Parmelee,  2  Allen,  212 ; 
Deming  v.  Darling,  148  Mass.  504,  20  N.  E.  107,  2  L.  R.  A.  743;  Palmer  V. 
Bell,  85  Me.  352,  27  Atl.  250 ;  see  the  note  to  Long  v.  Warren,  post,  661.) 


III.  FALSE  STATEMENTS  AS  TO  MATTERS  OF  OPINION. 

(102  N.  Y.  454,  7  N.  E.  321,  55  Am.  Rep.  824.) 

HICKEY    v.    MORRELL. 
(Court  of  Appeals  of  New  York.     June  1,  1886.) 

WAREHOUSEMAN  —  FALSE    REPRESENTATIONS    THAT    WAREHOUSE    WAS    FIRE- 
PROOF. 

A  warehouseman,  in  a  circular  soliciting  patrons,  stated  that  in  his 
warehouse  no  expense  had  been  spared  in  supplying  "protection  against 
the  spread  of  fire,  the  exterior  being  fire-proof,"  etc.  Portions  of  the  ex- 
terior of  the  building  were  in  fact  constructed  of  wood.  Held,  that  such 
statement  was  the  statement  of  a  matter  of  fact,  not  the  mere  expression 
of  an  opinion;  and,  if  made  by  the  warehouseman  with  knowledge  of 
the  component  parts  of  his  building,  and  with  intent  to  deceive,  a  person 
who  was  induced  thereby  to  deliver,  for  storage  in  the  warehouse,  prop- 
erty which  was  destroyed  by  fire  communicated  to  such  wooden  portions 
of  the  structure,  was  entitled  to  recover  from  the  warehouseman  for  the 
loss  so  incurred. 


FRAUD    AND    DECEIT.  649 

Appeal  from  Court  of  Common  Pleas  of  the  City  and  County  of 
New  York,  General  Term. 

Action  by  Teresa  H.  Hickey  against  John  H.  Morrell  for  alleged 
false  representations  by  defendant.  The  complaint  was  dismissed  at 
the  trial,  and  the  judgment  for  defendant  entered  thereon  was  affirm- 
ed by  the  general  term  on  appeal.  12  Daly,  482.  From  the  judgment 
of  the  general  term  plaintiff  again  appealed. 

DANFORTH,  J.  As  to  the  character  of  this  action  the  parties  are 
agreed.  It  is  for  "falsely  and  fraudulently,"  and  "with  an  intent  to 
deceive  and  defraud  the  plaintiff,"  representing,  among  other  things, 
that  the  defendant's  warehouse  was  "fire-proof  on  the  exterior," 
whereby  the  plaintiff  was  induced  to  deliver  to  him,  to  be  stored 
therein,  certain  property  of  value,  which,  while  there,  was  destroyed 
by  fire  communicated  from  the  outside  "to  the  wooden  cornice  and 
wooden  window-frames"  of  the  warehouse,  and  thence  to  the  prop- 
erty in  question.  The  answer  admitted  that  defendant  was  proprie- 
tor of  the  warehouse ;  that  it  and  the  articles  described  in  the  com- 
plaint were  destroyed  by  fire;  but  denied  the  other  matters  above 
referred  to  as  making  out  a  cause  of  action,  and  set  up  that  "the  prop- 
erty was  received  and  stored  by  him  as  a  warehouseman,  and  in  no 
other  capacity,  and  under  the  special  contract  that  the  goods  were 
stored  at  the  owner's  risk  of  fire." 

There  was  no  controversy  as  to  the  evidence.  The  question  was 
determined  upon  that  introduced  by  the  plaintiff,  and  in  view  of  the 
law  as  it  stood  at  the  time  of  the  bailment.  The  appellant  refers  to 
the  statute  (Laws  1871,  c.  742,  §  8)  "in  relation  to  storage,  and  other 
purposes,"  imposing  liabilities  upon  persons  for  any  fire  resulting 
from  their  willful  and  culpable  negligence,  and  which,  among  other 
things,  requires  "the  closing  of  iron  shutters"  at  the  completion  of 
the  business  of  each  day,  by  the  occupant  of  the  building  having  use 
or  control  of  the  same ;  but  the  complaint  contains  no  allegation  of 
negligence,  and  so  the  action  could  not  stand  on  that  ground  either 
at  common  law  or  by  statute.  Another  statute,  also  referred  to,  re- 
lating to  buildings  in  the  city  of  New  York,  (Laws  1874,  c.  547,  §  5,) 
is  of  some  importance  in  its  bearing  upon  the  point  chiefly  pressed 
upon  us,  and  as  likely  to  have  been  in  contemplation  of  both  parties. 
It  is  there  provided  that  buildings  of  a  certain  description — within 
which  the  storehouse  in  question  comes — shall  have  doors  and  blinds 
and  shutters  made  of  fire-proof  metal  on  every  window  and  opening 
above  the  first  story. 

The  plaintiff's  testimony  went  to  show  that  she  was  induced  to 
store  her  goods  with  the  defendant  by  representations  contained  in 
a  circular  issued  by  him,  the  object  of  which,  as  therein  stated,  was 
to  call  "the  special  attention  of  persons  having  valuable  articles,  mer- 
chandise, or  other  property  for  storage  to  his  new  first-class  storage 


650  LAW  OF  TORTS. 

warehouse,  in  the  erection  of  which,"  it  is  said,  among  other  things,  "no 
expense  has  been  spared  in  supplying  light,  ventilation,  and  protec- 
tion against  the  spread  of  fire ;  the  exterior  being  fire-proof,  and  the 
interior  being  divided  off  by  heavy  brick  walls,  iron  doors,  and  rail- 
ings, appropriate  and  convenient  in  every  way  for  the  various  kinds 
of  articles  to  be  stored." 

The  learned  counsel  for  the  respondent  argues  that  the  only  state- 
ments of  fact  in  the  paragraph  quoted  are  those  which  relate  to  the 
interior  as  divided  by  heavy  brick  walls,  iron  doors,  and  railings ; 
that  as  to  those  the  defendant  had  knowledge;  and  concedes  that 
their  non-existence  would  make  him  guilty  of  a  misrepresentation. 
This  is  a  very  narrow  view  of  the  subject,  and  could  prevail,  if  at  all, 
only  by  conceding  that  the  defendant  purposely  avoided  mention  of 
those  things  which,  if  stated,  would  make  his  solicitations  less  attrac- 
tive, and  display  him  as  the  owner  of  a  building  combustible  on  the 
outside,  and  so  of  little  security  to  its  contents  if  they  happened  to 
be  of  the  same  character. 

We  think  the  appellant's  ground  of  complaint  a  just  one.  It  was 
proven  that  in  fact  the  window-frames  in  the  warehouse  were  of 
wood ;  that  at  the  outside  of  the  windows  there  were  no  shutters ; 
that  the  cornices  were  of  wood,  covered  with  tin.  The  fire  occurred 
in  the  evening.  It  originated  in  other  buildings  across  the  street,  and 
from  them  communicated  to  the  wooden  window-frames  on  the  de- 
fendant's building.  An  architect  and  a  builder,  examined  as  experts, 
testified  that  a  building  constructed,  as  was  the  one  in  question,  "with 
wooden  window-frames  and  sashes,  and  no  outside  shutters,"  could 
not  be  deemed  fire-proof,  and  that  in  October,  1881,  it  was  practica- 
ble to  erect  a  storage  warehouse  which  would  be  fire-proof  on  the 
exterior.  At  the  close  of  the  plaintiff's  evidence  she  was  nonsuited, 
upon  the  ground  that  the  statement  in  the  circular,  as  to  the  charac- 
ter of  the  exterior  of  the  building,  was  a  mere  expression  of  an  opin- 
ion, and  not  the  statement  of  a  fact.  Upon  the  same  ground  the 
judgment  was  affirmed  at  the  general  term.  In  such  a  circular,  ob- 
viously intended  as  an  advertisement,  high  coloring  and  exaggera- 
tion as  to  the  advantages  offered  must  be  expected  and  allowed  for ; 
but,  when  the  author  descends  to  matters  of  description  and  affir- 
mation, no  misstatement  of  any  material  fact  can  be  permitted,  except 
at  the  risk  of  making  compensation  to  whomsoever,  in  reliance  upon 
it,  suffers  injury.  Here  the  allegation  is  that  the  exterior  of  the 
building  is  fire-proof.  It  necessarily  refers  to  the  quality  of  the  ma- 
terial out  of  which  it  is  constructed,  or  which  forms  its  exposed  sur- 
face. To  say  of  any  article  it  is  fire-proof  conveys  no  other  idea  than 
that  the  material  out  of  which  it  is  formed  is  incombustible.  That 
statement,  as  regards  certain  well-known  substances  usually  employ- 
ed in  the  construction  of  buildings,  while  it  might  in  some  final  sense 
be  deemed  the  expression  of  an  opinion,  could  in  practical  affairs  be 


FRAUD    AND    DECEIT.  651 

properly  regarded  only  as  a  representation  of  a  fact.  To  say  of  a 
building  that  it  is  fire-proof  excludes  the  idea  that  it  is  of  wood,  and 
necessarily  implies  that  it  is  of  some  substance  fitted  for  the  erec- 
tion of  fire-proof  buildings.  To  say  of  a  certain  portion  of  a  build- 
ing it  is  fire-proof  suggests  a  comparison  between  that  portion  and 
other  parts  of  the  building  not  so  characterized,  and  warrants  the 
conclusion  that  it  is  of  a  different  material.  In  regard  to  such  a  mat- 
ter of  common  knowledge,  the  statement  is  more  than  the  expres- 
sion of  opinion.  No  one  would  have  any  reason  to  suspect  that  any 
two  persons  could  differ  in  regard  to  it.  But  when  we  look  at  the 
words  accompanying  this  statement,  viz.,  "No  expense  has  been  spared 
in  supplying  protection  against  the  spread  of  fire,"  all  possibility 
of  doubt  seems  removed.  This  danger  is  pointed  out  as  the  one  thing 
which,  more  than  another,  the  owner  had  in  view  and  guarded 
against;  and  the  rest  of  the  sentence  shows  with  what  result,  viz., 
"the  exterior  being  fire-proof,"  and  the  interior  divided  off  by  heavy 
brick  walls,  iron  doors,  and  railings.  Thus  the  expenditure  of  money 
is  said  to  have  been  limited  only  by  the  accomplishment  of  the  de- 
sired object,  and  the  statement  of  the  material  used  is  in  connection 
with  the  representation  as  to  the  quality  of  the  exterior.  No  one 
reading  of  inside  walls  and  railings  of  incombustible  material,  and  of 
an  exterior  fire-proof,  could  suppose  that  a  precaution  against  fire 
made  necessary  by  statute  had  been  omitted,  or  that  a  builder  who 
called  attention  to  such  matters  as  an  inducement  to  patronage  could 
have  regarded  wooden  window-frames  as  in  any  sense  fire-proof. 
The  language  of  the  circular  is  very  emphatic.  In  effect,  it  says  the 
buildings,  as  a  whole,  have  been  erected  at  an  immense  cost;  from 
which  assertion  alone,  in  view  of  the  business  to  which  they  were  de- 
voted, one  would  expect  strength  and  adaptation  of  materials,  and 
skill  in  construction,  affording  security,  at  least,  against  all  the  or- 
dinary dangers  to  which  property  might  be  exposed  when  put  in 
store.  But  this  general  statement  is  followed  by  the  declaration  that 
no  expense  has  been  spared  in  supplying  "protection  against  the 
spread  of  fire ;"  and  this  assurance  is  made  prominent  by  the  display 
of  capital  letters,  and  justified  by  the  explanation  which  relates  to  an 
existing  state  of  things,  viz.,  "the  exterior  being  fire-proof,"  and  still 
further  emphasized  by  the  more  moderate  and  qualified  statement  as 
to  the  interior.  That  is  not  said  to  be  fire-proof,  but  only  "divided 
off  by  heavy  brick  walls  and  iron  doors  and  railings ;"  describing,  at 
the  same  time,  its  arrangement,  and  the  substance  of  its  walls  and 
partitions. 

As  to  this,  therefore,  the  statement  would  be  true,  although  the 
floors,  lintels,  stairs,  landings,  ties,  joists,  ceilings,  and  other  parts 
were  of  wocd,  but  no  such  discrimination  is  suggested  as  to  the  ex- 
terior. The  strength  of  the  walls  might,  indeed,  be  impaired  by  the 
necessary  openings  for  doors  and  windows,  but  for  the  purpose  of 


652  LAW  OF  TORTS. 

preventing  mischief  by  fire,  or,  as  the  defendant  put  it,  "the  spread  of 
the  fire,"  the  exterior  is  pronounced  fire-proof.  Had  he  only  said  of 
the  exterior,  as  he  did  of  the  interior,  "the  wall  is  of  brick,"  the  in- 
tending customer  would  have  been  put  to  an  inquiry  as  to  the  win- 
dow-frames and  doors.  He  said  much  more.  We  think,  therefore, 
that  the  defendant  must  be  regarded  as  stating  a  fact,  and  not  as  ex- 
pressing a  mere  opinion,  when  he  described  the  exterior,  that  is,  the 
whole  exterior,  of  his  buildings  as  fire-proof.  Such  statement  is  not 
to  be  classed  with  those  relating  to  value,  or  prospective  profits,  or 
prospects  of  business,  or  assertions  in  regard  to  a  speculative  matter, 
concerning  any  of  which  men  may  differ.  It  relates  to  something  ac- 
complished; to  an  existing  fact,  as  distinguished  from  one  yet  to 
come  into  existence.  It  was  made  after  calling  to  mind  the  use  to 
which  the  buildings  were  to  be  put,  the  fact  that  the  attention  of  the 
builder  had  been  especially  directed  to  "protection  against  the  spread 
of  fire,"  which  could  be  effected  only  by  the  use  of  proper  materials ; 
and  the  statement  was  made  with  knowledge  that  such  materials  had 
not  been  used. 

Nor  is  it  like  the  safe  case  cited  by  the  respondent, — Walker  v.  Mil- 
ner,  4  Fost.  &  F.  745.  There  the  action  was  upon  a  warranty  that 
"the  safe  in  question  was  thief-proof;"  "that  nothing  can  break  into 
it."  It  was  broken  into.  There  was  no  suggestion  of  fraud  or  de- 
ceit, and  the  jury  were  required  to  discriminate  between  what  was 
represented  and  what  was  warranted,  and,  unless  satisfied  there  was 
a  warranty,  to  find  for  the  defendant.  The  safe-maker's  prospectus 
was  put  in  evidence.  It  stated  that  the  safes  would  insure  the  safety 
of  valuable  property  contained  in  them.  The  court  said :  "The  words 
cited  from  the  circular  could  hardly  be  understood  in  the  sense  of  a 
warranty  or  assurance  of  perfect  safety,  but  only  as  importing  a  rep- 
resentation of  a  high  degree  of  strength."  They  were  promissory 
merely.  Then  plaintiff's  counsel  referred  to  a  later  prospectus,  in 
which  the  safes  in  question  were  only  spoken  of  "as  of  the  strongest 
security,"  and  relied  on  this  as  implying  a  withdrawal  of  the  previous 
warranty.  But  Cockburn,  J.,  observed  that,  "assuming  later  prospec- 
tuses to  have  been  issued  after  the  burglary,  it  was  only  dictated  by 
common  honesty;  for,  after  it  had  been  found  by  actual  experience 
that  the  safe  was  not  absolutely  secure  against  all  possible  attempts, 
it  would  have  been  fraudulent  to  continue  previous  description."  In 
the  case  at  ba.r  the  plaintiff  alleges  fraud.  A  jury  might  find  that  an 
exterior  of  a  city  building  partly  of  wood,  although  to  no  greater  ex- 
tent than  the  one  in  question,  was  not  fire-proof,  within  tlje  meaning 
and  intent  of  the  circular.  They  might  also  find  that  when  the  circu- 
lar was  issued  this  fact  was  known  to  the  defendant;  and  then  the 
doctrine  suggested  by  Cockburn,  J.,  in  the  case  cited,  would  have 
some  application. 


FRAUD    AND    DECEIT.  653 

Nor  do  the  other  cases  referred  to  seem  to  support  respondent's 
contention.  They  exclude  the  idea  of  fraud,  and  relate  to  matters  of 
mere  opinion;  as  whether  a  certain  valve  will  consume  smoke  and 
save  fuel,  (Prideaux  v.  Bunnett,  1  C.  B.,  N.  S.,  613 ;)  whether  certain 
pictures  were  the  work  of  the  old  masters,  or  copies,  (Jendwine  v. 
Slade,  2  Esp.  572 ;)  whether  land  was  of  the  value  certified  to,  (Gor- 
don v.  Butler,  105  U.  S.  553,  26  L.  Ed.  1166.)  But  in  none  of  them 
is  it  denied  that,  if  the  person  making  the  statement  or  expressing 
the  opinion  had  at  the  time  knowledge  of  its  falsity,  the  action  would 
lie.  It  is  certainly  well  settled  upon  principles  of  natural  justice  that 
for  every  fraud  or  deceit  which  results  in  consequential  damage  to  a 
party  he  may  have  an  action. 

Here  the  complaint  states,  not  only  a  false  representation,  with  a 
fraudulent  intent,  but  that  the  falsehood  was  conscious  and  willful ; 
that  by  it  the  plaintiff  was  induced  to  deliver  her  property  to  be  stored 
in  the  building,  and  thereby  incurred  loss.  The  evidence  may  be  so 
viewed  as  to  sustain  these  allegations.  The  learned  counsel  for  the 
respondent  has  stated,  in  the  broadest  and  most  unqualified  terms, 
as  a  proposition  not  to  be  disputed,  "that  no  man  is  liable  for  the  ex- 
pression of  his  opinion  or  judgment."  But  this  is  true  only  when  the 
opinion  stands  by  itself  and  is  intended  to  be  taken  as  distinct  from 
anything  else ;  and,  where  the  proposition  is  found  in  the  books,  it 
is  so  restricted.  Thus  it  is  said :  "Matters  of  opinion,  stated  merely 
as  such,  will  not,  in  general,  form  the  ground  to  a  legal  charge  of 
fraud."  Leake,  Cont.  355,  giving  many  instances  and  also  excep- 
tions to  the  rule.  Statements  of  value  have  been  held  insufficient  to 
sustain  an  action  where,  as  is  said,  they  were  "mere  matters  of  opin- 
ion," (Simar  v.  Canaday,  53  N.  Y.  306,  13  Am.  Rep.  523;)  but  at  the 
same  time  it  is  shown  that  under  certain  circumstances  they  are  to 
be  regarded  as  affirmations  of  fact,  and  then,  if  false,  an  action  can 
be  maintained  upon  them.  The  same  rule  applies  where  A,  desiring 
credit  of  B  for  a  certain  amount,  the  latter  asks  C  as  to  the  solvency 
of  A,  and  he  replies,  "He  is  good;  as  good  as  any  man  in  the  coun- 
try for  that  sum."  No  doubt  this  involves  opinion;  but  it  is  held 
that  if  the  recommendation  was  made  in  bad  faith,  and  with  knowl- 
edge that  A  was  insolvent,  C  would  be  liable.  Upton  v.  Vail,  6 
Johns.  181,  5  Am.  Dec.  210.  And  so  as  to  every  representation  con- 
cerning a  matter  of  fact,  by  which  one  man  is  induced  to  change  his 
position,  to  his  injury,  or  the  benefit  of  another,  it  may  be  so  expressed 
as  to  bind  the  person  making  it  to  its  truth,  whether  it  take  the 
form  of  an  opinion  or  not,  or  it  may  appear  that  it  was  not  intended 
to  be  acted  upon.  In  the  latter  case  no  obligation  is  incurred. 

In  the  circular  issued  by  the  defendant  there  are  many  words  of 
commendation,  which,  however  strong,  could  not  be  relied  upon  as 
the  basis  of  contract.  The  ones  at  first  referred  to  are  not  of  that 
character.  They  relate  to  the  present,  and  describe  a  portion  of  the 


054  LAW  OF  TORTS. 

building  in  its  existing  state  as  "being  fire-proof."  This  is  not  a  mat- 
ter of  opinion,  for  it  defines  a  state  or  condition,  and,  if  part  of  that 
portion  was  of  wood,  may  properly  be  regarded  as  "a  false  statement 
of  a  fact."  Whether  the  defendant  knew  the  component  parts  of  his 
own  buildings,  and,  if  so,  whether  the  statement  was  made  with  in- 
tent to  deceive,  and  whether  it  was  an  inducement  to  the  contract, 
the  learned  counsel  for  the  respondent  has  fully  argued.  At  present 
it  is  unnecessary  to  discuss  those  questions,  for  it  seems  to  us  they 
are,  as  the  case  stands,  properly  for  the  jury;  and  upon  the  only  point 
which  appears  to  have  been  considered  by  the  court  below  we  are 
obliged  to  differ  from  them. 

That  the  issues  may  be  more  fully  tried,  the  judgment  should  be 
reversed,  and  a  new  trial  granted,  with  costs  to  abide  the  event. 

All  concur,  except  ANDREWS  and  MILLER,  JJ.,  not  voting,  and 
EARL,  J.,  dissenting. 

Judgment  reversed. 

(See  also  Marsh  v.  Falker,  40  N.  T.  562;  Southern  Development  Co.  v.  Silva, 
125  U.  S.  247,  8  Sup.  Ct  881,  31  L.  Ed.  678;  Mooney  v.  Miller,  102  Mass. 
217;  Holbrook  v.  Connor,  60  Me.  578,  11  Am.  Rep.  212;  Cowley  v.  Smyth, 
46  N.  J.  Law,  380,  50  Am.  Rep.  432.) 


(171  Mass.  307,  50  N.  E.  623.) 

LYNCH   v.   MURPHY   (In   part). 

(Supreme  Judicial  Court  of  Massachusetts.     Middlesex.     May  20,  1898.) 

DECEIT— SALE  OF  STOCK — OPINION  AS  TO  VALUE. 

Mere  expressions  of  opinion  by  a  promoter  of  a  corporation  as  to  the 
value  of  its  stock  as  an  investment,  which  would  naturally  be  based 
largely  on  the  success  of  a  certain  patent,  will  not  sustain  an  action  of 
deceit  brought  by  a  purchaser  of  such  stock. 

Report  from  Superior  Court,  Middlesex  County;  Charles  S.  Lil- 
ley,  Judge. 

Action  by  Patrick  Lynch  against  Daniel  J.  Murphy.  Judgment  or- 
dered on  the  verdict  for  defendant. 

KNOWLTON,  J.  This  is  an  action  for  deceit.  The  plaintiff  al- 
leges that  the  defendant  fraudulently  made  certain  false  representa- 
tions in  connection  with  the  sale  to  him  of  stock  in  a  corporation. 
The  corporation  was  called  the  Haggerty  Water-Motor  Company, 
and  was  organized,  under  the  laws  of  the  state  of  Maine,  for  the  pur- 
pose of  manufacturing  and  selling  water  motors  under  patents.  The 
plaintiff  testified  on  cross-examination  that  before  he  bought  any 
stock  in  the  company  he  had  seen  the  machine  in  operation  at  the 
defendant's  house,  and  that  he  went  to  look  at  it  there.  He  also  tes- 


FRAUD    AND    DECEIT.  655 

tified  that  when  he  purchased  his  stock  he  knew  that  the  machine  was 
not  perfected,  and  that  they  were  experimenting  on  it.  All  his  tes- 
timony shows  that  he  knew  enough  about  the  corporation  to  under- 
stand that  the  value  of  its  stock  must  be  largely  a  matter  of  opinion, 
and  dependent  upon  future  contingencies.  All  the  alleged  false  rep- 
resentations on  which  he  relies  were  in  regard  to  the  value  of  the 
stock  as  an  investment,  and  related  in  the  main,  if  not  altogether,  to 
the  future.  Considered  in  connection  with  the  nature  of  the  proper- 
ty, they  were  plainly  mere  expressions  of  opinion,  which,  when  made 
by  a  vendor,  will  not  sustain  an  action  for  deceit.  Belcher  v.  Costel- 
lo,  122  Mass.  189;  Nash  v.  Trust  Co.,  159  Mass.  439,  34  N.  E.  625; 
Id.,  163  Mass.  574,  40  N.  E.  1039,  28  L.  R.  A.  753,  47  Am.  St.  Rep. 
489;  Deming  v.  Darling,  148  Mass.  504,  20  N.  E.  107,  2  L.  R.  A. 
743;  Andrews  v.  Jackson,  168  Mass.  266,  47  N.  E.  412,  37  L.  R.  A. 
402,  60  Am.  St.  Rep.  390.  The  plaintiff  bought  stock  at  different 
times.  The  first  time  he  bought  of  the  defendant  and  of  Haggerty, 
who  was  the  patentee  of  the  machine.  He  testified  that  the  stock 
book  and  certificates  showed  that  the  stock  so  purchased  was  treas- 
ury stock  of  the  company.  Afterwards  he  bought  of  one  Wholey,  a 
stockholder,  and  later  of  one  Brennan,  and  still  later  he  bought  more 
of  the  defendant  and  Haggerty,  which  also  was  treasury  stock,  trans- 
ferred to  him  by  one  Williams  as  trustee  for  the  company.  The  re- 
port leaves  it  uncertain  whether  the  stock  bought  of  Wholey  and  of 
Brennan  was  or  was  not  treasury  stock.  The  plaintiff  testified  that 
in  making  each  of  these  purchases  he  was  influenced  by  the  defend- 
ant's representations  of  value,  which,  as  we  have  already  said,  pur- 
ported to  be,  from  their  very  nature,  mere  expressions  of  opinion. 
lAhere  are  other  branches  of  the  case  in  which  the  weight  of  the  evi- 
dence is  in  favor  of  the  defendant;  but,  without  considering  them, 
we  are  of  opinion  that  a  verdict  was  rightly  ordered  for  him  on  the 
ground  that  the  only  representations  made  by  him  did  not  purport  to 
be  anything  more  than  statements  of  opinion,  upon  which  a  purchas- 
er cannot  safely  rely. 
Judgment  on  the  verdict. 

(Representations  in  regard  to  the  value  of  property,  In  order  to  effect  a 
sale,  are  usually,  as  in  the  above  case,  held  to  be  statements  of  opinion,  and 
therefore  not  to  afford  a  cause  of  action  to  the  vendee  if  he  is  misled  thereby. 
Gordon  v.  Butler,  105  U.  S.  553,  26  L.  Ed.  1166;  Shade  v.  Creviston,  93  Ind. 
591;  Watts  v.  Cummins,  59  Pa.  84;  Bossingham  v.  Syck,  118  Iowa,  192,  91 
N.  W.  1047;  Ellis  v.  Andrews,  56  N.  Y.  83,  15  Am.  Rep.  379;  Endsley  v. 
Johns,  120  111.  469,  12  N.  E.  247,  60  Am.  Rep.  572.  But  there  are  important 
exceptions  to,  and  qualifications  of,  this  doctrine.  Thus  such  representations 
may  sometimes  be  deemed  statements  of  fact,  as,  e.  g.,  where  statements  as 
to  the  value  of  stock  were  made  by  one  who,  as  president  and  manager  of 
the  company,  possessed  a  special  knowledge  of  such  value.  Shelton  v.  Healy, 
74  Conn.  265,  50  Atl.  742;  Andrews  v.  Jackson,  168  Mass.  266,  47  N.  E.  412, 
37  L.  R.  A.  402,  60  Am.  St.  Rep.  390;  Hedin  v.  Minneapolis  Medical  Inst, 
62  Minn.  146,  64  N.  W.  158,  35  L.  R.  A.  417,  54  Am.  St  Rep.  628;  Collins  v. 


(J56  LAW   OF   TOUTS. 

Jackson,  54  Mich.  186,  19  N.  W.  947.  So  one  making  false  statements  of 
value  may  be  held  liable,  if  he  employs  some  artifice  to  prevent  inquiry  or  the 
obtaining  of  knowledge  by  the  vendee  [Chrysler  v.  Canaday,  90  N.  Y.  272, 
43  Am.  Rep.  166;  Leonard  v.  Springer,  197  111.  532,  64  N.  E.  299];  or  if  he 
makes  false  statements  as  to  facts  affecting  the  question  of  value  [Messer  v. 
Smyth,  59  N.  H.  41;  Schumaker  v.  Mather,  133  N.  Y.  590,  30  N.  E.  753]. 

In  a  few  states  false  statements  by  a  vendor  as  to  the  price  he  paid  for 
property  ar.e  treated  as  statements  of  value,  and  as  therefore  not  affording 
a  cause  of  action.  Richardson  v.  Noble,  77  Me.  390;  Hemmer  v.  Cooper,  8 
Allen,  334;  but  see  Belcher  v.  Costello,  122  Mass.  189;  cf.  Hauk  v.  Brown- 
ell,  120  111.  161,  11  N.  E.  416.  Other  states,  with  better  reason,  hold  the  con- 
trary. Fairchild  v.  McMahon,  139  N.  Y.  290,  34  N.  E.  779,  36  Am.  St.  Rep. 
701;  Page  v.  Parker,  43  N.  H.  363,  369,  80  Am.  Dec.  172;  Dorr  v.  Cory,  108 
Iowa,  725,  78  N.  W.  682. 

In  like  manner,  false  statements  as  to  the  law,  or  the  legal  effect  of  a  docu- 
ment, will  not  constitute  actionable  fraud  [Burt  v.  Bowles,  69  Ind.  1;  Goriue- 
ly  v.  Gymnastic  Ass'n,  55  Wis.  350,  13  N.  W.  242;  Jaggar  v.  Winslow.  30 
Minn.  263,  15  N.  W.  242;  Upton  v.  Tribilcock,  91  U.  S.  45,  50,  23  L.  Ed.  203]; 
as,  e.  g.,  where  a  man  selling  and  assigning  a  legacy  assured  the  vendee 
that  the  legacy  was  as  good  as  a  mortgage  upon  any  man's  farm  [Duffany 
v.  Ferguson,  66  N.  Y.  482f. 

It  is  also  a  general  rule  that  false  representations,  to  constitute  fraud,  must 
relate  to  past  or  present  facts  or  occurrences,  and  hence  that  false  promise* 
or  false  statements  of  future  intentions  do  not  amount  to  fraud.  Burt  v. 
Bowles,  69  Ind.  1;  Long  v.  Woodman,  58  Me.  49;  Milwaukee  Brick  Co.  v. 
Schoknecht,  108  Wis.  457,  84  N.  W.  838;  Pollard  v.  McKenney  [Neb.]  96  N. 
W.  679,  681;  Taylor  v.  Commercial  Bank,  174  N.  Y.  181,  184,  66  N.  E.  181, 
62  L.  R.  A.  783,  95  Am.  St  Rep.  564.  But  if  false  statements  of  fact  accom- 
pany the  promises,  and  are  relied  upon  to  his  injury  by  the  person  to  whom 
the  statements  are  made,  fraud  is  committed.  Kley  v.  Healy,  127  N.  Y.  5~j~>, 
28  N.  E.  593;  Dashiel  v.  Harshman,  113  Iowa,  283,  85  N.  W.  85.  So  false 
promises,  if  made  with  the  intent  not  to  fulfill  them,  and  with  the  purpose 
and  effect  of  deceiving  another  person  to  his  injury,  have  been  adjudged  to  con- 
stitute fraud,  and  contracts  or  conveyances  rescinded  therefor,  or  equitable  re- 
lief granted.  Goodwin  v.  Home,  60  N.  H.  485 ;  Pollard  v.  McKenney  [Neb.]  96 
N.  W.  679;  Dowd  v.  Tucker,  41  Conn.  197;  Jones  v.  Jones,  40  Misc.  Rep. 
360,  82  N.  Y.  Supp.  325.  On  this  ground  it  is  generally  held  that,  though 
a  purchase  of  goods  on  credit  by  one  who  is  insolvent,  without  disclosing  his 
insolvency,  is  not  fraudulent,  yet  if  the  purchaser  has  also  at  the  time  of  the 
sale  an  intent  not  to  pay  for  the  goods,  he  is  guilty  of  fraud,  and  the  goods 
may  be  reclaimed  from  the  vendee.  Hotchkin  v.  Third  Nat.  Bank,  127  N. 
Y.  329,  27  N.  E.  1050;  Wright  v.  Brown,  67  N.  Y.  1;  Donaldson  v.  Farwell, 
93  U.  S.  631,  23  L.  Ed.  993;  Stewart  v.  Emerson,  52  N.  H.  301,  citing  many 
cases;  Burrill  v.  Stevens,  73  Me.  395,  40  Am.  Rep.  366;  Slagle  v.  Goodnow, 
45  Minn.  531,  48  N.  W.  402.) 


FRAUD    AND    DECEIT.  657 

IV.  FALSE  STATEMENTS  AS  TO  PATENT  OR  OBVIOUS 

DEFECTS. 

(68  N.   T.   426.) 

LONG  v.  WARREN  (In  part). 
(Court  of  Appeals  of  New  York.     Feb.  13,  1877.) 

1.  FBATJD— FALSE  REPRESENTATIONS  BY  VENDOR  AS  TO  OBVIOUS  FACTS. 

When  the  real  quality  of  property  sold  is  obvious  to  ordinary  intelli- 
gence, and  the  vendee  sees  the  property  before  the  sale,  and  the  truth 
or  falsity  of  representations  made  by  the  vendor  as  to  its  condition  may 
be  readily  ascertained  by  the  vendee  by  the  exercise  of  ordinary  observa- 
tion, and  they  are  not  made  for  the  purpose  of  throwing  him  off  his  guard 
and  diverting  him  from  making  inquiry  and  examination,  the  vendee 
has  no  ground  of  action  for  fraud,  though  lie  purchases  the  property  in 
reliance  upon  such  representations. 

2.  SAME. 

In  an  action  for  false  representations  by  defendant,  whereby  plaintiff 
was  induced  to  purchase  defendant's  farm,  it  appeared  that  defendant 
represented  to  plaintiff  that  there  was  no  quack  grass  on  the  farm  save 
in  a  small  two-acre  lot,  and  that  plaintiff,  relying  thereon,  purchased 
the  farm.  It  also  appeared  that,  before  purchasing,  the  plaintiff  walked 
over  portions  of  the  farm  with  his  brother-in-law,  that  both  of  them 
were  farmers  and  knew  what  quack  grass  was,  that  this  kind  of  grass 
is  readily  distinguishable  by  its  appearance  from  other  growths,  that  the 
portions  of  the  farm  over  which  the  two  men  walked  contained  quack 
grass  in  large  quantities,  and  this  could  have  been  easily  perceived  on 
passing  over  them.  Held,  that  plaintiff  could  not  recover  for  the  false 
representations  of  defendant. 

Appeal  from  Supreme  Court,  General  Term,  Fourth  Department. 

Action  by  Edward  Long  against  Oscar  F.  Warren  to  recover  dam- 
ages alleged  to  have  been  sustained  by  plaintiff  by  false  representa- 
tions of  defendant  in  the  sale  of  a  farm.  The  case  was  submitted  to 
a  referee,  who  reported  for  plaintiff.  The  judgment  entered  on  such 
report  was  reversed  by  the  general  term.  From  the  judgment  of  the 
general  term  plaintiff  appealed. 

FOLGER,  J.  This  is  an  action  at  law  to  recover  damages  for  false 
representations  and  deceit  in  the  sale  of  a  farm  by  the  defendant  to 
the  plaintiff.  The  representations  alleged  to  be  false  were  as  to  the 
non-existence  on  the  farm  of  a  noxious  weed  or  grass  known  as 
"quack  grass."  It  is  alleged  that  the  plaintiff  asked  the  defendant  if 
there  was  any  quack;  and  the  defendant  referred  to  a  little  piece 
north  of  the  garden  and  the  barn,  about  one  and  one-half  or  one  and 
three-fourths  acres,  and  said  that  there  was  quack  there,  and  that  he 
dug  it  out.  The  plaintiff  then  asked  him  if  there  was  any  other  quack, 
and  he  said,  "No,"  there  was  none  on  the  farm  except  one  little  piece, 
and  that  the  boys  had  raked  all  out.  This  is  the  testimony  of  the 
plaintiff,  and  tends  to  prove  a  representation  that  there  was  but  one 
CHASE  (2o  ED.) — 42 


G58  LAW  OF  TORTS. 

piece  of  quack  grass  on  the  farm,  in  extent  not  more  than  one  and 
three-quarters  acres.  The  defendant's  testimony  is  that  in  passing 
over  the  farm  the  plaintiff  and  he  went  to  what  he  called  the  "quack 
lot,"  next  the  road,  above  the  barn;  that  as  they  went  into  that  lot 
the  plaintiff  said:  "This  devilish  stuff  is  all  over  the  farm,  ain't  it?" 
The  defendant  told  him:  "No,  it  was  not;  that  I  did  not  know  of 
but  two  other  patches,  where  I  had  cultivated  land;  there  might  be 
quack  in  some  of  the  fields  I  had  not  plowed,  but  I  had  not  discov- 
ered any.  I  told  him  one  was  by  the  sand-bank,  and  the  other  in  next 
lot  west."  There  is  quite  a  difference  in  the  version  of  the  statements 
made  on  that  occasion,  as  given  by  the  plaintiff  or  the  defendant. 
There  was  but  one  other  person  present,  one  Kinney,  who  was  a  wit- 
ness at  the  trial.  He  says  that  "the  subject  of  quack  grass  was  men- 
tioned. Plaintiff  asked  defendant  something  about  quack  grass,  and 
defendant  said  there  was  some  on  corner  lot  north  and  east  of  farm, 
an  acre  and  a  half,  and  that  he  had  had  his  boys  raking  it  out  and 
burning  it.  I  had  seen  stuff  burning;  said  they  had  been  burning  it 
and  thought  that  they  had  got  it  out.  I  have  no  distinct  recollection 
of  anything  else." 

I  can  but  conclude  that,  on  the  difference  between  the  plaintiff  and 
defendant  as  to  what  was  said  by  the  defendant  on  the  subject  of  the 
quack  grass,  the  plaintiff  is  corroborated  to  a  considerable  extent  by 
Kinney,  and  that  the  preponderance  of  the  testimony  is  that  the  de- 
fendant represented  that  there  was  but  one  piece,  not  in  size  two 
acres,  and  that  that  had  been  probably  got  out.  This,  then,  was  the 
substance  of  the  representation  made.  The  proof  is  ample  to  show 
that  it  was  false.  Without  recapitulating  the  testimony,  it  suffices  to 
say  that  it  establishes  that  there  were  many  places  on  which  the  weed 
was  growing;  that  the  extent  of  it  was  twenty-five  acres,  or  near 
thereto ;  and  that  it  was  in  vigorous  and  luxuriant  condition. 

With  this  proof  of  the  extent  of  land  affected  by  it,  and  the  vigor 
of  the  growth  of  it,  and  that  it  was  upon  tilled  as  well  as  meadow 
and  pasture  land,  and  some  proof  of  the  defendant's  knowledge  of 
the  presence  of  it  in  lots  other  than  that  named  by  him,  it  is  impos- 
sible to  conclude  that  the  defendant  did  not  know  of  the  existence  of 
it  on  the  farm  in  more  places  and  to  a  greater  extent  than  he  described 
to  the  plaintiff,  and  that  he  is  chargeable  with  a  scienter  of  the  falsity 
of  his  representation.  With  the  facts  proven  that  the  plaintiff  made 
particular  inquiry  of  the  defendant  as  to  it;  that  the  extent  and 
growth  of  it  was  so  much  larger  than  the  defendant  told  the  plaintiff ; 
and  with  the  fact,  hereafter  to  be  noticed,  that  it  was  a  drawback  from 
the  value  of  the  farm,  both  for  cultivation  and  for  sale, — it  is  not  pos- 
sible to  infer  that  the  defendant  did  not  intend  to  have  the  plaintiff 
believe  the  statement  made  to  him,  or  that  he  did  not  intend  to  de- 
ceive the  plaintiff  to  his  harm,  and  that  the  representation  made  is 
not  shown  to  be  a  false  and  fraudulent  one. 


FRAUD    AND    DECEIT. 


659 


It  is  established  by  the  testimony  of  the  plaintiff  that  he  relied  up- 
on the  statement,  and  was  induced  by  it  to  make  the  purchase  of  the 
farm.  Scarcely  a  witness  is  sworn  who  does  not  testify  that  the  pres- 
ence of  quack  grass  in  the  soil  of  a  farm,  to  the  extent  and  strength 
of  growth  shown  by  the  testimony,  was  a  damage  to  the  farm  either 
for  tillage  or  for  the  market.  We  have,  then,  the  union  of  fraud  and 
damage  thereby,  which  are  valid  to  give  a  cause  of  action.  Bayly  v. 
Merrel,  Cro.  Jac.  386. 

There  is  another  question  yet  to  be  determined  before  we  can  say 
that  the  plaintiff  may  recover.  It  does  not  appear  that  the  defendant 
used  any  artifice,  either  of  word  or  act,  to  dissuade  or  turn  away  or 
hinder  the  plaintiff  from  making  inspection  of  the  farm  for  himself, 
so  as  to  ascertain  by  his  own  faculties,  and  those  of  his  companion, 
Kinney,  whether,  in  fact,  there  was  more  of  the  quack  grass  upon 
the  premises  than  the  defendant  had  stated.  It  is  evident  that  he  had 
the  opportunity  in  full  degree  to  make  a  personal  examination.  He 
was  advised  by  the  defendant's  declaration,  and  by  his  own  view  of 
it,  that  there  was  one  piece  of  it  on  the  farm,  and  thus  made  aware 
of  the  possibility  of  it  being  in  the  whole  soil.  He  had  twice  passed 
across  the  farm  in  company  with  Kinney.  He  had  heard  and  read  of 
this  grass ;  indeed,  his  inquiry  as  to  it  of  the  defendant  shows  that 
he  was  alive  to  the  evil  of  it.  He  had  encountered  it  before  in  his 
own  garden,  and  had  seen  it  before  on  Sturtevant's  farm,  more  than 
once,  as  he  passed  over  it.  He  had  been  a  farmer  all  his  life,  and 
knew  what  quack  grass  was.  Kinney,  who  was  with  him,  and  is  his 
brother-in-law,  had  known  quack  grass  for  the  ten  years  before  the 
trial ;  had  seen  it  elsewhere,  on  other  land,  at  the  time  they  passed 
over  the  farm ;  and  had  had  it  on  his  own  farm,  his  business  being 
that  of  a  farmer,  and  had  got  a  good  deal  out  by  raking  and  burning. 
They  went  into  the  orchard  on  their  first  visit  to  the  farm.  They 
went  across  the  wheat-field  then ;  and  on  the  second  visit,  they  went 
across  the  meadow  by  the  barn.  The  testimony  shows  that  on  each 
of  those  fields  this  grass  was  rooted  and  growing,  on  some  of  them 
very  thrivingly,  so  that  the  plaintiff,  and  his  friend  who  was  with  him, 
not  only  had  unrestrained  opportunity  to  go  into  every  field  on  the 
farm,  and  use  their  faculties  in  the  detection  of  any  noxious  plants 
growing  in  the  soil,  but  they  did,  in  fact,  go  into  three  of  the  fields  in 
which  the  testimony  shows  that  it  was  growing,  and  where  it  must 
have  been  under  their  feet.  Was  there  any  reason  in  the  nature  of 
things,  the  season  of  the  year,  the  structure  and  appearance  of  the 
plant,  which  would  prevent  a  person  looking  for  it  from  discovering 
it?  It  was  in  the  latter  part  of  the  year  that  they  were  there,  and 
there  had  been  a  frost,  but  the  strength  of  the  testimony  is  that  there 
was  no  snow  to  cover  the  ground.  The  testimony  is  not  entirely 
unanimous  as  to  the  ease  of  distinguishing  it  from  other  grasses ; 
but  the  great  preponderance  is  that  it  may  be  quite  readily  distin- 


CGO  LAW   OF   TORTS. 

guished  from  wheat  blades,  or  from  blades  of  timothy  grass,  the  two 
plants  which  it  most  resembles.  It  can  be  told  on  plowed  land,  or 
in  growing  wheat.  It  can  be  seen  in  a  field  by  one  riding  along  the 
road.  It  is  plain  to  be  seen;  a  heavy  freeze  changes  it,  but  a  frost 
darkens  its  color,  and  makes  it  the  more  conspicuous.  When  eaten 
down  close  by  animals,  it  is  not  easily  discernible,  and  some  of  the 
pieces  where  the  quack  was  had  been  pastured  close.  But  the 
strength  of  the  testimony  is  that  it  is  readily  perceived  by  one  who 
is  well  acquainted  with  it,  among  other  grasses,  or  in  growing  wheat, 
or  on  plowed  land,  and  will  be  noticed  by  a  common  observer  as  he 
passes  through  it,  or  by  a  man  of  ordinary  prudence,  who  is  about 
buying  a  farm. 

One  is  forced  by  the  testimony  to  the  conclusion  that  had  the 
plaintiff,  when  he  was  on  the  farm  before  the  purchase,  taken  ordi- 
nary pains  to  look  out  for  this  grass,  he  would  have  perceived  it  in 
some  other  lots  than  that  to  which  it  was  confined  in  the  defendant's 
representation. 

The  rule  is  comprehensively  stated  as  follows  by  the  United  States 
supreme  court  in  Slaughter's  Adm'r  v.  Gerson,  13  Wall.  383,  20  L. 
Ed.  627:  "They  must  be  representations  relating  to  a  matter  as  to 
which  the  complaining  party  did  not  have  at  hand  the  means  of 
knowledge.  Where  means  of  knowledge  are  at  hand,  and  equally 
available  to  both  parties,  and  the  subject  of  the  purchase  is  equally 
open  to  their  inspection,  if  the  purchaser  does  not  avail  himself  of 
those  means  and  opportunities  he  will  not  be  heard  to  say,  in  im- 
peachment of  the  contract  of  sale,  that  he  was  drawn  into  it  by  the 
vendor's  misrepresentations."  See,  also,  Davis  v.  Sims,  Lalor,  Supp. 
234;  Rubber  Co.  v.  Adams,  23  Pick.  256;  Mooney  v.  Miller,  102 
Mass.  220.  Some  of  the  cases  cited  were  of  sales  of  land. 

The  testimony  in  this  case,  to  which  we  have  recurred  as  above 
"stated,  brings  the  plaintiff  within  the  force  of  the  rules  we  have  above 
set  forth.  This  quack  grass  was  an  object  obvious  to  the  intelligence 
of  the  plaintiff.  He  had  equal  means  with  the  defendant  of  acquiring 
information,  within  the  meaning  of  the  rule;  for  it  did  not  require 
weeks  or  days  upon  the  farm,  or  actual  tillage  of  it,  but  only  the  exer- 
cise of  the  faculty  of  sight  while  passing  over  the  farm.  The  truth 
or  falsity  of  the  representations  could,  by  the  exercise  of  ordinary  dil- 
igence in  examination,  have  been  made  known.  The  inquiry  and  ex- 
amination was  one  which  a  prudent  person  ought  to  have  made,  with 
the  means  and  opportunity  so  ready. 

The  learned  counsel  for  the  appellant  makes  the  claim,  in  his  print- 
ed points,  that  the  plaintiff  and  his  friend  Kinney  did  exercise  all  the 
care  and  precaution  of  an  ordinarily  prudent  man.  The  testimony 
does  not  sustain  this.  There  is  no  proof  that  they  examined  or  look- 
ed with  a  view  to  discover  the  quack  if  it  was  there.  They  testify 
that  they  did  not  discover  it;  not  that  they  tried  to.  They  did  not 


FRAUD    AND    DECEIT.  661 

go  over  the  farm  thoroughly,  and  with  a  view  to  find  it  there,  if  it 
was  there  growing;  nor  on  the  lots  which  they  entered  upon  was 
their  attention  upon  this  matter  and  an  inspection  kept  up,  which,  as 
we  have  seen,  would  have  necessarily  discovered  it.  The  proof  of  its 
existence  on  the  farm,  in  excess  of  the  defendant's  statement,  shows 
it  is  so  luxuriant  in  growth,  so  close  in  its  connection  stalk  to  stalk, 
and  so  conspicuous  to  observers  having  no  interest  in  the  question 
of  its  presence  or  absence,  as  that  it  is  beyond  belief  that  an  attempt 
to  find  it,  made  before  the  purchase,  would  riot  have  disclosed  it. 
Hence  the  order  of  the  general  term  should  be  affirmed,  and  judg- 
ment absolute  given  for  the  defendant. 

CHURCH,  C.  J.,  and  ALLEN  and  MILLER,  JJ.,  concur.  RA- 
PALLO,  ANDREWS,  and  EARL,  JJ.,  dissent. 

Order  affirmed,  and  judgment  accordingly. 

(The  ground  of  this  decision  is  explained  in  Schumaker  v.  Mather,  133  N. 
Y.  590,  30  N.  E.  755,  as  follows:  "Because  the  grass  was  distinguishable 
enough,  and  was  an  object  obvious  to  the  plaintiff's  intelligence,  when  he 
went  over  the  farm  and  examined  it  with  the  view  of  ascertaining  its  pres- 
ence, it  was  held  that  no  cause  of  action  was  made  out.  The  decision 
was  upon  the  ground  that  the  plaintiff's  means  of  acquiring  the  information 
were  equal  to  the  defendant's,  by  'only  the  exercise  of  the  faculty  of  sight 
while  passing  over  the  farm.'  *  *  *  I  think  the  general  rule  is  that  if  the 
facts  represented  are  not  matters  peculiarly  within  the  party's  knowledge, 
and  the  other  party  has  the  means  available  to  him  of  knowing,  by  the  exer- 
cise of  ordinary  intelligence,  the  truth  or  the  real  quality  of  the  subject  of 
the  representation,  he  must  make  use  of  those  means,  or  he  will  not  be  heard 
to  complain  that  he  was  induced  to  enter  into  the  contract  by  misrepresenta- 
tions." In  like  manner  it  has  been  said  by  the  United  States  Supreme  Court: 
"If,  having  eyes,  the  purchaser  will  not  see  matters  directly  before  them, 
where  no  concealment  is  made  or  attempted,  he  will  not  be  entitled  to  favor- 
able consideration  when  he  complains  that  he  has  suffered  from  his  own 
voluntary  blindness,  and  been  misled  by  over-confidence  in  the  statements 
of  another."  Slaughter's  Aclm'r  v.  Gerson,  13  Wall.  379,  20  L.  Ed.  627. 

It  is  further  said  in  Albany  City  Sav.  Inst.  v.  Burdick,  87  N.  Y.  40,  49, 
that  the  authority  of  Long  v.  Warren,  ante,  p.  657,  "should  not  be  extended 
to  cases  not  clearly  within  the  principles  there  laid  down."  In  a  recent 
case,  for  example,  where  a  person,  relying  upon  positive  misstatements  as  to 
the  nature  and  contents  of  an  instrument,  signed  it  without  reading  it,  since 
he  did  not  have  his  spectacles  with  him,  it  was  held  that  he  was  not  precluded 
from  attacking  the  validity  of  the  instrument.  "It  is  certainly  not  just/' 
says  the  court,  "that  one  who  has  perpetrated  a  fraud  should  be  permitted 
to  say  to  the  party  defrauded,  when  he  demands  relief,  that  he  ought  not  to 
have  believed  or  trusted  him."  Wilcox  v.  American  Tel.  Co.,  176  N.  Y.  115, 
68  N.  E.  153.  Similar  cases  are  First  Nat.  Bank  v.  Deal,  55  Mich.  592,  22  N. 
W.  53 ;  McGinn  v.  Tobey,  62  Mich.  252,  28  N.  W.  818,  4  Am.  St.  Rep.  848 ;  May- 
field  v.  Schwartz,  45  Minn.  150,  47  N.  W.  448,  10  L.  R.  A.  606 :  Burroughs  v. 
Pacific  Guano  Co.,  81  Ala.  255,  1  South.  212 ;  Warder,  Bushnell  &  Glessner  Co. 
v.  Whitish,  77  Wis.  430,  46  N.  W.  540;  see  also  Kingston  v.  L.  P.  &  J.  A.  Smith 
Co.,  post,  p.  662,  and  note. 

In  states  where  great  latitude  is  allowed  to  "dealers'  talk,"  as  in  Maine  anil 
Massachusetts,  a  veudor's  statements,  known  by  him  to  be  false,  in  regard  to 


CG2  LAW  OF  TORTS. 

the  price  he  paid  for  the  property,  or  as  to  offers  for  It  made  by  others,  or 
as  to  the  quality  of  goods  sold,  when  the  vendee  has  an  opportunity  to  in- 
spect the  goods,  and  can  therefore  by  reasonable  diligence  determine  the 
quality  for  himself,  are  held  to  give  no  cause  of  action  to  the  vendee,  since 
the  means  of  information  are  open  to  him,  and  since  it  is  naturally  to  be 
"understood  that  such  statements  are  to  be  distrusted."  Deming  v.  Darling, 
148  Mass.  504,  20  N.  E.  107.  2  L.  R.  A.  743;  Manning  v.  Albee,  11  Allen,  522; 
Holbrook  v.  Connor,  60  Me.  578,  11  Am.  Rep.  212;  Bourn  v.  Davis,  76  Me. 
223.  It  is  interesting  to  notice  that  there  is  at  present  a  "disinclination  to 
extend  this  rule"  [Andrews  v.  Jackson,  168  Mass.  266,  268,  47  N.  E.  412,  37 
L.  R.  A.  402,  60  Am.  St.  Rep.  390],  and  that,  though  it  is  applied  to  "seller's 
talk  as  to  value  and  quality,  in  another  class  of  cases  the  buyer  may  be 
warranted  in  relying  wholly  on  the  word  of  the  seller,  and  hold  him  liable 
in  damages  for  fraud."  Lee  v.  Tarplin,  183  Mass.  52,  66  N.  E.  431].) 


(114  Fed.  294,  52  C.  C.  A.   206.) 
KINGSTON  et  al.  v.  L.  P.  &  J.  A.  SMITH  CO. 

(Circuit  Court  of  Appeals  of  the  United  States,  Sixth  Circuit     April  8,  1902.) 

No.  992. 

1.  FBAUO — RIGHT  TO  RELY  ON  STATEMENT. 

Every  contracting  party,  not  in  actual  fault,  has  a  right  to  rely  upon 
the  express  statement  of  an  existing  fact,  the  truth  of  which  is  known  to 
the  contracting  party  who  made  it,  and  unknown  to  the  party  to  whom 
it  is  made,  when  such  statement  is  the  basis  of  a  mutual  engagement. 
He  is  under  no  obligation  to  investigate  and  verify  the  statement,  to  the 
truth  of  which  the  other  party  to  the  contract,  with  full  means  of  knowl- 
edge, has  deliberately  pledged  his  faith. 

2.  SAME. 

A  party  making  a  contract  to  dredge  a  harbor,  and  being  at  some  dis- 
tance from  the  harbor  at  the  time,  relied,  in  good  faith,  on  the  representa- 
tions of  the  other  party,  who  had  done  a  portion  of  the  work  and  had  ac- 
cess to  the  chart  showing  soundings,  as  to  the  thickness  of  the  rock  to  be 
removed,  without  investigating  the  facts  himself,  to  ascertain  whether 
the  representations  were  true.  The  representations  were  in  reality  false, 
and  known  to  be  so  by  the  party  making  them.  Held  that,  in  this  state 
of  the  evidence,  it  was  improper  to  charge  the  jury  that,  if  both  parties 
had  equal  opportunities  of  obtaining  information  as  to  the  work  to  be  done, 
the  party  to  whom  the  representations  were  made  had  no  right  to  rely 
upon  them,  but  that  it  was  his  duty  to  inform  himself  as  to  the  condition 
of  affairs. 

3.  SAME — MATTERS  OF  OPINION. 

Representations  made  after  soundings  had  been  taken  in  the  harbor 
for  the  purpose  of  ascertaining  the  character  of  the  work,  and  a  chart 
thereof  made  with  which  the  party  making  the  representations  was 
familiar  and  the  other  party  not,  were  not  mere  expressions  of  opinion, 
but  were  matters  of  fact,  which  could  be  relied  on,  though  not  accom- 
panied with  specific  statements  as  to  actual  measurements  having  been 
made. 

In  Error  to  the  Circuit  Court  of  the  United  States  for  the  Northern 
District  of  Ohio. 

Before  LURTON,  DAY,  and  SEVERENS,  Circuit  Judges. 


FRAUD    AND    DECEIT.  663 

DAY,  Circuit  Judge.  This  action  was  brought  to  recover  damages 
alleged  to  have  been  sustained  by  the  plaintiff,  the  L.  P.  &  J.  A. 
Smith  Company,  for  an  alleged  breach  of  contract  made  with  the  de- 
fendants, Hingston  et  al.,  for  certain  dredging  in  the  harbor  of  Ash- 
tabula.  The  defendants  alleged  that  the  contract  upon  which  a  re- 
covery was  sought  was  obtained  by  certain  fraudulent  misrepresen- 
tations, among  others  that  the  rock  which  it  was  necessary  to  remove 
under  the  terms  of  the  contract  would  average  a  foot  in  thickness, 
which  representation  was  false  and  untrue,  and  known  to  be  such 
when  the  representation  was  made,  and  that  the  falsity  thereof  was 
unknown  to  the  defendants,  who  made  said  contract  believing  said 
statements  to  be  true  and  in  reliance  thereon.  Other  allegations 
were  made  in  the  answer,  unnecessary  to  notice  in  the  disposition  we 
shall  make  of  this  case. 

The  court  charged  the  jury  among  other  things,  as  follows:  "If 
you  find  that  Smith,  the  agent  of  the  plaintiff,  and  Hingston,  one  of 
the  defendants,  had  equal  opportunities  of  obtaining  information  as 
to  the  character,  location,  and  amount  of  the  work  to  be  done,  then, 
as  a  matter  of  law,  Hingston  had  no  right  to  rely  upon  representa- 
tions made  by  Smith,  but  it  was  his  duty  to  inform  himself  as  to 
these  matters." 

To  understand  the  relevancy  of  this  charge,  it  is  necessary  to  know 
something  of  the  facts  which  the  testimony  tended  to  develop.  The 
dredging  which  Hingston  &  Co.  undertook  to  do  for  Smith  &  Co. 
was  in  the  completion  of  a  contract  to  remove  certain  materials  from 
the  harbor  at  Ashtabula,  in  order  to  deepen  and  improve  the  same 
for  the  purposes  of  navigation.  Smith  &  Co.  had  already  done  a 
considerable  portion  of  the  work.  The  harbor  was  to  be  excavated 
to  the  depth  of  20  feet,  the  rock  and  dirt  removed  where  the  channel 
was  not  of  that  depth,  so  as  to  give  20  feet  of  clear  water.  For 
the  purpose  of  knowing  the  character  of  the  work  to  be  done,  sound- 
ings had  been  taken  and  a  map  or  chart  prepared  showing  the  ex- 
cavation to  be  made  in  carrying  out  the  work.  This  chart  was  ac- 
cessible to  the  Smiths,  and,  doubtless,  known  to  them.  The  char- 
acter of  the  work  was  so  far  developed  that  the  jury  might  find  it 
to  have  been  known  to  the  Smith  Company's  representative  when  he 
made  the  contract  with  Hingston  which  has  given  rise  to  this  suit. 
The  contract  was  made  at  Buffalo,  a  very  considerable  distance  from 
Ashtabula.  Hingston  gave  testimony  tending  to  show  that  he  did 
not  know  the  nature  and  character  of  the  work  necessary  to  be  done 
in  carrying  out  the  contract,  and  relied  upon  the  representation  made 
to  him  by  Smith  as  to  the  thickness  of  the  rock  excavation  to  be 
made.  The  testimony  shows  that  the  thickness  of  the  rock  to  be 
removed  was  a  very  material  circumstance  in  view  of  the  fact  that 
the  work  was  paid  for  by  the  cubic  yard,  and  thick  rock  could  be 
more  profitably  handled  than  thin  layers  of  rock  could  be.  In  this 


064  LAW  OF  TORTS. 

situation  of  affairs  is  it  sound  law  to  say  that  Kingston  might  not 
rely  upon  the  representations  of  Smith  as  to  the  thickness  of  the 
material  to  be  excavated?  In  a  sense  it  is  true  that  Kingston  had 
equal  opportunities  with  Smith  to  know  the  character  of  the  work 
to  be  done,  and  by  going  to  Ashtabula  he  might  have  inspected  the 
work  and  examined  the  chart.  But  was  he  bound  to  do  so?  Un- 
doubtedly a  party  may  not  shut  his  eyes  to  facts  which  are  apparent 
at  the  time  of  making  a  contract  in  blind  reliance  upon  the  assurance 
of  another  that  things  are  not  what  his  senses,  if  used,  would  show 
him  they,  in  fact,  are.  The  rule  is  well  stated  in  Slaughter's  Adm'r 
v.  Gerson,  13  Wall.  379-383,  20  L.  Ed.  627,  cited  to  sustain  the 
charge  of  the  court  below,  wherein  Mr.  Justice  Field  says :  "Where 
the  means  of  knowledge  are  at  hand  and  equally  available  to  both 
parties,  and  the  subject  of  purchase  is  alike  open  to  their  inspection, 
if  the  purchaser  does  not  avail  himself  of  these  means  and  oppor- 
tunities he  will  not  be  heard  to  say  that  he  has  been  deceived  by  the 
vendor's  misrepresentations.  If,  having  eyes,  he  will  not  see  mat- 
ters directly  before  them,  where  no  concealment  is  made  or  at- 
tempted, he  will  not  be  entitled  to  favorable  consideration  when  he 
complains  that  he  has  suffered  from  his  own  voluntary  blindness, 
and  been  misled  by  overconfidence  in  the  statements  of  another." 

The  important  condition  that  the  means  of  information  be  at  hand 
is  not  to  be  overlooked.  The  matters  directly  before  the  party 
which  may  be  observed  he  must  be  presumed  to  see.  But  does  the 
reason  or  the  justice  of  the  rule  apply  where  the  subject-matter  is 
not  present,  but  distant  from  the  contracting  parties  ?  In  such  case, 
where  the  party  making  the  representation  has  had  means  and  op- 
portunities to  know  the  facts  concerning  the  subject-matter  of  the 
contract  which  the  other  party  has  not  had,  and  cannot  have  without 
going  to  the  expense  and  delay  of  an  investigation  of  matters  at  a 
distance,  we  see  no  reason  why  he  may  not  rely  upon  such  repre- 
sentations of  fact.  In  our  opinion,  the  party  making  such  represen- 
tations cannot  be  heard  to  say,  "Their  falsity  might  have  been  known 
by  an  investigation  of  the  facts,  and  had  the  other  party  not  been 
so  credulous  as  to  rely  upon  my  representations  he  would  not  have 
been  deceived."  The  rule  is  thus  stated  in  Bigelow  on  Fraud,  67: 
"Every  contracting  party,  not  in  actual  fault,  has  a  right,  however, 
to  rely  upon  the  express  statement  of  an  existing  fact,  the  truth  of 
which  is  known  to  the  contracting  party  who  made  it,  and  unknown 
to  the  party  to  whom  it  is  made,  when  such  statement  is  the  basis  of 
a  mutual  engagement.  He  is  under  no  obligation  to  investigate  and 
verify  the  statement,  to  the  truth  of  which  the  other  party  to  the 
contract,  with  full  means  of  knowledge,  has  deliberately  pledged  his 
faith." 

This  statement  is  taken  almost  verbatim  from  the  opinion  in  Mead 
f.  Bunn,  32  N.  Y.  275-280,  and  is  amply  sustained  by  the  authorities. 


8'RAUD    AND    DECEIT.  665 

McClellan  v.  Scott,  24  Wis.  81-87 ;  Hale  v.  Philbrick,  42  Iowa,  81 ; 
Faribault  v.  Sater,  13  Minn.  228  (Gil.  210) ;  David  v.  Park,  103  Mass. 
501 ;  Savage  v.  Stevens,  126  Mass.  207 ;  Erickson  v.  Fisher,  51  Minn. 
300,  53  N.  W.  638 ;  Henderson  v.  Henshall,  4  C.  C.  A.  357,  54  Fed. 
320. 

In  view  of  the  superior  knowledge  which  the  testimony  tended  to 
show  was  possessed  by  Smith  as  to  the  nature  and  character  of  the 
work  to  be  done  in  the  execution  of  the  contract  entered  into,  we 
think  it  was  error  to  instruct  the  jury  that  Kingston  had  no  right  to 
rely  upon  these  material  representations,  which,  if  untrue,  were  mis- 
leading and  prejudicial. 

In  this  connection  the  jury  were  further  instructed:  "Statements 
of  what  condition  of  things  exist  beneath  the  water,  made  between 
people  whose  business  it  is  to  deal  with  things  below  the  water,  must 
be  regarded  as  conjectures,  as  statements  of  opinion  merely,  unless 
there  goes  with  such  statements  the  assertion  of  a  fact  with  respect 
to  actual  measurements  having  been  made,  of  which  report  is  sought 
to  be  given." 

We  think  this  statement,  in  view  of  the  facts  shown,  is  too  broad 
and  liable  to  mislead.  The  thickness  of  the  rock  to  be  excavated 
after  the  soundings  were  made  was  not  mere  matter  of  opinion.  It 
was  a  matter  of  fact  which  Smith,  there  was  testimony  tending  to 
show,  assumed  to  know  and  state.  Expressions  of  opinion  as  to 
things  in  their  nature  not  capable  of  being  known,  as  the  prospects 
of  an  unopened  mine  and  the  like,  may  not  be  relied  upon,  but  mat- 
ters of  fact  capable  of  positive  knowledge  may  be  the  subject  of  rep- 
resentations for  which  one  may  be  held  liable.  In  the  present  case 
the  statement  as  to  the  average  thickness  of  the  rock  to  be  excavated, 
under  the  charge  given,  could  not  be  relied  upon  unless  statements 
of  actual  measurement  were  made  in  the  same  connection  which  were 
false.  But  if  the  testimony  disclosed  that  the  facts  as  to  the  thick- 
ness of  the  rock  to  be  excavated  might  be  within  the  knowledge  of 
Smith  resulting  from  measurements  or  other  means  with  which  he 
was  familiar,  and  which  were  unknown  to  Kingston,  such  representa- 
tions may  become  material,  although  unaccompanied  with  specific 
statements  as  to  measurements.  The  charge  in  this  respect  should 
be  modified  in  a  retrial  of  the  case. 

For  error  in  the  respects  pointed  out  the  judgment  will  be  reversed, 
and  a  new  trial  awarded. 

(There  is  a  statement  running  through  the  books,  and  frequently  asserted, 
that  "if  the  means  of  knowledge,  or  of  acquiring  information,  are  equally  open 
to  both  parties,  the  party  deceived  cannot  hold  the  other  liable,  since  it  is  his 
own  fault  in  not  ascertaining  the  truth  for  himself."  This  doctrine  may  well 
apply  in  such  cases  as  Long  v.  Warren,  ante,  p.  657,  where  the  truth  is  obvious 
before  a  man's  face  and  eyes;  but  when  it  is  pushed  as  far  as  it  has  been  by 
some  decisions,  and  held  to  require  the  exercise  of  careful  and  diligent  in- 
vestigation, it  is  unreasonable.  More  and  more,  therefore,  the  states  have 


G66 


LAW   OF  TORTS. 


come  to  the  acceptance  of  the  doctrine  of  the  principal  case.  "One  who 
induces  another  to  walk  in  the  way  of  a  pitfall  ought  not  to  be  absolved  from 
liability  for  a  resulting  injury,  even  though  he  might,  if  permitted  to  do  so, 
convince  the  jury  that  his  scheme  would  not  have  been  successful  had  the  vic- 
tim displayed  ordinary  business  judgment."  Riley  v.  Bell,  120  Iowa,  52,  95 
N.  W.  170 ;  Erickson  v.  Fisher,  51  Minn.  300,  53  N.  W.  638 ;  ,Cottrill  v.  Krurn, 
100  Mo.  397,  13  S.  W.  753,  18  Am.  St  Rep.  549.  Hence  if  a  person  relies  upon 
a  false  statement  as  to  the  contents  of  a  deed  or  mortgage,  and  suffers  loss 
thereby,  he  has  a  "remedy  against  the  person  deceiving  him,  though  he  might 
have  learned  the  truth  by  consulting  the  public  records"  [Id. ;  Mead  v.  Bunn,  32 
N.  Y.  275 ;  Pryse  v.  McGuire,  81  Ky.  608 ;  cf.  Nolte  v.  Reichelm,  96  111.  425] ;  so 
as  to  false  statements  about  a  patent,  though  the  buyer  might  have  discovered 
the  fraud  by  searching  the  records  of  the  patent  office  [McKee  v.  Eaton,  26  Kan. 
226 ;  David  v.  Park,  103  Mass.  501 ;  Coulter  v.  Clark,  160  Ind.  311,  66  N.  E. 
739] ;  so  as  to  the  value  of  bank  stock,  though  the  vendee,  being  a  stockholder, 
might  have  examined  the  books  of  the  bank  to  ascertain  the  truth  [Union  Nat. 
Bank  v.  Hunt,  76  Mo.  439 ;  Redding  v.  Wright,  49  Minn.  322,  51  N.  W.  1036] ; 
so  as  to  false  statements  by  the  vendor  of  land  as  to  the  number  of  acres  in 
the  parcel  sold,  though  the  vendee  might  have  ascertained  the  truth  by  a 
survey  or  otherwise  [Lovejoy  v.  Isbell,  73  Conn.  368,  47  Atl.  682 ;  Olson  v.  Or- 
ton,  28  Minn.  36,  8  N.  W.  878 ;  Ledbetter  v.  Davis,  121  Ind.  119,  22  N.  E.  744] ; 
so  as  to  sales  of  goods  where  the  falsity  of  the  vendor's  statements  could  have 
been  discovered  by  investigation  [Perry  v.  Rogers,  62  Neb.  898,  87  N.  W.  1063 ; 
Strand  v.  Griffith,  97  Fed.  854,  38  C.  C.  A.  444] ;  and  in  other  like  cases.  Burns 
v.  Lane,  138  Mass.  350;  Dean  v.  Ross,  178  Mass.  397,  60  N.  E.  119;  Arnold 
v.  Teel,  182  Mass.  1,  64  N.  E.  413 ;  Linington  v.  Strong,  107  111.  295 ;  Hale  v. 
Philbrick,  42  Iowa,  81 ;  Clark  on  Contracts  [1st  Ed.]  337.  So  if  false  state- 
ments be  made  by  a  vendor,  and  he  furthermore  persuades  the  vendee  not  to 
investigate,  the  vendor  is  liable  for  fraud.  Henderson  v.  Henshall,  54  Fed. 
320,  4  C.  C.  A.  357.) 


V.  INTENT  THAT  FALSE  STATEMENTS  BE  ACTED  UPON. 
—TO  WHOM  THEY  MAY  BE  MADE. 

(83  N.  Y.  31,  38  Am.   Rep.  389.) 

EATON,  COLE  &  BURNHAM  CO.  v.  AVERY  (in  part). 
(Court  of  Appeals  of  New  York.     Nov.  30,  18SO.) 

DECEIT — LIABILITY  TO  THIRD  PARTIES— INTENT. 

Though  in  general  false  representations  made  to  one  person  cannot  give 
a  right  of  action  to  another  to  whom  they  are  communicated,  and  who  acts 
in  reliance  upon  their  truth,  yet  it  is  not  always  essential  that  a  represen- 
tation should  be  addressed  directly  to  the  party  who  seeks  a  remedy  for 
having  been  deceived  and  defrauded  by  means  thereof ;  as,  for  example, 
where  A  makes  a  statement  to  B  for  the  purpose  of  being  communicated 
to  C,  or  intending  that  it  shall  reach  and  influence  him.  On  this  principle, 
If  a  merchant  gives  to  a  mercantile  agency  information  which  he  knows 
to  be  false  in  regard  to  his  circumstances  or  pecuniary  ability,  and  the 
agency,  in  good  faith,  communicates  such  information  to  one  of  its  sub- 
scribers, who  has  an  interest  in  obtaining  the  knowledge,  and  the  sub- 
scriber acts  upon  the  information  and  thereby  suffers  loss,  the  merchant 
is  liable  to  such  subscriber,  since  it  must  be  presumed  that  a  person  In- 
tentionally deceiving  such  an  agency  intends  thereby  to  deceive  those  who 
deal  with  the  agency. 


FRAUD    AND    DECEIT.  667 

RAPALLO,  J.  This  is  an  action  for  deceit,  in  obtaining  the  sale 
and  delivery  of  goods  to  the  firm  of  Avery  &  Riggins,  by  means  of 
false  representations  made  by  the  defendant  as  to  the  pecuniary  con- 
dition of  his  firm.  The  representations  charged  were  not  made  di- 
rectly by  the  defendant  to  the  plaintiff,  but  are  alleged  to  have  been 
made  by  him  to  a  mercantile  agency  (Dun,  Barlow  &  Co.),  or  its 
agent,  and  by  it  communicated  to  the  plaintiff,  who  claims  that  it 
delivered  the  goods  to  Avery  &  Riggins  on  credit,  on  the  faith  of 
such  representations.  The  counsel  for  the  defendant  contends  that 
the  plaintiff  cannot  maintain  an  action  against  the  defendant  for  false 
representations  made  by  him  to  Dun,  Barlow  &  Co.,  or  its  agent,  and 
that  such  representations,  assuming  them  to  have  been  made,  are 
not  sufficiently  connected  with  the  dealing  between  the  defendant 
and  the  plaintiff  to  enable  the  latter  to  recover  by  reason  thereof. 
On  this  point  we  are  of  opinion  that  the  law  was  correctly  stated 
by  the  learned  judge  before  whom  the  trial  was  had,  in  his  charge 
to  the  jury,  wherein  he  instructed  them  that  if  the  defendant,  when 
he  was  called  upon  by  the  agent  of  Dun,  Barlow  &  Co.,  made  the 
statements  alleged  in  the  complaint  as  to  the  capital  of  the  firm  of 
Avery  &  Riggins,  and  they  were  false,  and  so  known  to  be  by  the 
defendant,  and  were  made  with  the  intent  that  they  should  be  com- 
municated to  and  believed  by  persons  interested  in  ascertaining  the 
pecuniary  responsibility  of  the  firm,  and  with  intent  to  procure  credit 
and  defraud  such  persons  thereby,  and  such  statements  were  commu- 
nicated to  the  plaintiff  and  relied  upon  by  it,  and  the  alleged  sale 
was  procured  thereby,  the  plaintiff  was  entitled  to  recover.  The  rule 
thus  laid  down  accords  with  the  principle  of  adjudications  in  anal- 
ogous cases,  in  which  it  has  been  held  that  it  is  not  essential  that  a 
representation  should  be  addressed  directly  to  the  party  who  seeks 
a  remedy  for  having  been  deceived  and  defrauded  by  means  thereof. 
Oazeaux  v.  Mali,  25  Barb.  578;  Newbery  v.  Garland,  31  Barb.  121; 
Bruff  v.  Mali,  36  N.  Y.  200 ;  Morgan  v.  Skiddy,  62  N.  Y.  319 ;  Com- 
monwealth v.  Call,  21  Pick.  515,  523,  32  Am.  Dec.  284;  Common- 
wealth v.  Harley,  7  Mete.  462.  The  principle  of  these  cases  is  pe- 
culiarly applicable  to  the  case  of  statements  made  to  mercantile 
agencies.  Proof  was  given  on  the  trial  as  to  the  business  and  of- 
fice of  these  agencies,  but  they  are  so  well  known,  and  have  been 
so  often  the  subject  of  discussion  in  adjudicated  cases,  that  the  courts 
can  take  judicial  notice  of  them.  Their  business  is  to  collect  informa- 
tion as  to  the  circumstances,  standing  and  pecuniary  ability  of  mer- 
chants and  dealers  throughout  the  country,  and  keep  accounts  there- 
of, so  that  the  subscribers  to  the  agency,  when  applied  to  by  a  cus- 
tomer to  sell  goods  to  him  on  credit,  may,  by  resorting  to  the  agency 
or  to  the  lists  which  it  publishes,  ascertain  the  standing  and  respon- 
sibility of  the  customer  to  whom  it  is  proposed  to  extend  credit.  A 
person  furnishing  information  to  such  an  agency  in  relation  to  his 


GG8  LAW  OF  TORTS. 

own  circumstances,  means  and  pecuniary  responsibility,  can  have  no 
other  motive  in  so  doing  than  to  enable  the  agency  to  communicate 
such  information  to  persons  who  may  be  interested  in  obtaining  it, 
for  their  guidance  in  giving  credit  to  the  party ;  and  if  a  merchant  fur- 
nishes to  such  an  agency  a  willfully  false  statement  of  his  circum- 
stances or  pecuniary  ability,  with  intent  to  obtain  a  standing  and 
credit  to  which  he  knows  that  he  is  not  justly  entitled,  and  thus  to 
defraud  whoever  may  resort  to  the  agency,  and  in  reliance  upon  the 
false  information  there  lodged,  extend  a  credit  to  him,  there  is  no 
reason 'why  his  liability  to  any  party  defrauded  by  those  means  should 
not  be  the  same  as  if  he  had  made  the  false  representation  directly 
to  the  party  injured. 

The  counsel  for  the  appellant  is  undoubtedly  right  in  his  general 
proposition  that  a  false  representation  made  to  one  person  cannot 
give  a  right  of  action  to  another  to  whom  it  may  be  communicated, 
and  who  acts  in  reliance  upon  its  truth.  If  A  casually  or  from 
vanity  makes  a  false  or  exaggerated  statement  of  his  pecuniary  means 
to  B,  or  even  if  he  does  so  with  intent  to  deceive  and  defraud  B, 
and  B  communicates  the  statement  to  C,  who  acts  upon  it,  A  can- 
not be  held  as  for  a  false  representation  to  C.  But  if  A  makes  the 
statement  to  B  for  the  purpose  of  being  communicated  to  C,  or  in- 
tending that  it  shall  reach  and  influence  him,  he  can  be  so  held.  In 
Commonwealth  v.  Call,  21  Pick.  515,  32  Am.  Dec.  284,  the  court  say 
on  this  point  at  page  523,  that  the  representation  was  intended  to 
reach  P  and  operate  upon  his  mind;  that  it  did  reach  him,  and  pro- 
duced the  desired  effect  upon  him,  and  that  it  was  immaterial  whether 
it  passed  through  a  direct  or  circuitous  channel. 

In  Commonwealth  v.  Harley,  7  Mete.  462,  the  prisoner  was  in- 
dicted for  obtaining  goods  by  false  pretenses  from  G.  B.  &  Co.  The 
representations  were  made  by  one  Cameron,  in  the  absence  of  the 
prisoner  Harley,  to  a  clerk  of  G.  B.  &  Co.,  who  communicated  them 
to  a  member  of  the  firm.  But  there  was  evidence  that  they  were 
made  by  Cameron  with  the  approbation  and  direction  of  Harley,  and 
these  facts  were  held  sufficient  to  sustain  a  conviction.  Neither  is 
it  necessary  that  there  should  be  an  intent  to  defraud  any  particular 
person.  Should  A  make  a  false  statement  of  his  affairs  to  B,  and 
then  publicly  hold  out  B  as  his  reference,  can  it  be  doubted  that 
he  would  be  bound  by  the  communication  of  his  statement  by  B  to 
any  person  who  might  inquire  of  him  in  consequence  of  this  refer- 
ence? That  case  differs  from  the  present  one  only  in  the  fact  that 
here  there  was  no  express  invitation  to  the  public  to  call  upon  Dun, 
Barlow  &  Co.  for  information.  But  the  defendant  knew  that  they 
were  a  mercantile  agency  whose  business  it  was  to  give  information 
as  to  the  standing  and  means  of  dealers,  and  that  it  was  resorted  to 
by  merchants  to  obtain  such  information.  By  making  a  statement 
of  the  financial  condition  of  his  firm  to  such  an  agency  he  virtually 


FRAUD    AND    DECEIT. 

instructed  it  what  to  say  if  inquired  of.  Can  it  make  any  difference 
whether  he  spontaneously  went  to  the  agency  to  furnish  the  informa- 
tion or  whether  he  gave  it  on  their  application?  He  must  have 
known  that  the  object  of  the  inquiry  was  not  to  satisfy  mere  curiosity, 
but  to  enable  the  agency  to  give  information  upon  which  persons  ap- 
plying for  it  might  act,  in  dealing  with  the  defendant's  firm. 

The  case  is  a  new  one  in  its  facts,  but  the  principles  by  which  it 
should  be  governed  are  well  established. 

Judgment  affirmed. 

(Similar  decisions  are  Genesee  Sav.  Bank  v.  Michigan  Barge  Co.,  52  Mich. 
164,  17  N.  W.  790 ;  Tindle  v.  Birkett,  171  N.  T.  520,  64  N.  E.  210,  89  Am.  St. 
Rep.  822.  "It  is  a  general  rule  that  a  person  cannot  complain  of  false  repre- 
sentations, for  the  purpose  of  maintaining  an  action  of  deceit,  unless  the  rep- 
resentations were  either  made  directly  to  him,  with  the  intention  that  they 
should  be  acted  upon  by  him,  or  made  to  another  person,  with  the  intention 
that  they  should  be  communicated  to  him  and  acted  upon  by  him.  A  repre- 
sentation made  to  one  person  with  the  intention  that  it  shall  reach  the 
ears  of  another,  and  be  acted  upon  by  him,  and  which  does  reach  him,  and 
is  acted  upon  by  him  to  his  injury,  gives  the  person  so  acting  upon  it  the 
same  right  to  relief  or  redress  as  if  it  had  been  made  to  him  directly."  Henry 
v.  Dennis,  95  Me.  24,  49  Atl.  58,  85  Am.  St.  Rep.  365;  S.  P.  Richardson  v. 
Silvester,  L.  R.  9  Q.  B.  34;  Watson  v.  Crandall,  78  Mo.  583. 

On  the  same  principle,  it  is  held  that  "a  director  of  a  corporation  who 
knowingly  issues  or  sanctions  the  circulation  of  a  prospectus  containing  false 
statements  of  material  facts,  the  natural  tendency  of  which  is  to  deceive 
and  to  induce  the  public  to  purchase  the  corporate  stock,  is  liable  for  the 
damages  sustained  by  one  who,  relying  upon  and  induced  by  the  statements, 
makes  such  a  purchase."  Morgan  v.  Skiddy,  62  N.  Y.  319;  Terwilliger  v. 
Great  Western  Tel.  Co.,  59  111.  249;  cf.  Nash  v.  Minnesota  Title  Ins.  Co., 
159  Mass.  437,  34  N.  E.  625;  Arthur  v.  Griswold,  55  N.  Y.  400;  Leonard  v. 
Springer,  197  111.  532,  64  N.  E.  299.) 


(154  Mass.  286,  28  N.  E.  267,  13  L.  R.  A.  733.) 

HUNNEWELL  v.   DUXBURY  et  al. 
(Supreme  Judicial  Court  of  Massachusetts.     Suffolk.     September  2.  1891.) 

FALSE  STATEMENTS  BY  CORPORATION,  IN  PUBLIC  RECORDS— ACTION  BY  PERSON 
RELYING  THEREON. 

Plaintiff  bought  notes  of  a  foreign  corporation,  but  before  doing  so  em- 
ployed an  attorney  to  examine  the  public  records  of  his  own  state,  which 
contained,  as  prescribed  by  statute,  sworn  statements  by  officers  and  di- 
rectors of  foreign  corporations  as  to  the  amount  of  their  capital  stock  and 
the  amount  paid  in  thereon.  Defendants,  who  had  sworn  to  and  filed  such 
a  statement  in  regard  to  the  particular  corporation  whose  notes  plaintiff 
thought  of  purchasing,  had  made  a  false  statement  therein  as  to  the  amount 
of  capital  stock  paid  in.  Plaintiff  bought  the  notes  in  reliance  upon  the 
truth  of  this  statement,  and  afterwards  sued  the  defendants  to  recover 
damages  for  the  loss  he  had  sustained.  Held,  that  defendants  were  not 
liable,  since  the  certificate,  having  only  been  filed  to  secure  the  right  to 
transact  business  in  the  state,  could  not  be  regarded  as  communicated  by 
the  defendants  to  the  public  or  to  the  plaintiff,  and  was  therefore  too  re- 
mote from  any  design  to  influence  the  action  of  the  plaintiff. 


670  LAW  OF  YORTS. 

Exceptions  from  Superior  Court,  Suffolk  County;  Robert  C.  Pit- 
man, Judge. 

Action  by  Elias  R.  Hunnewell  against  J.  W.  Duxbury  and  others 
for  damages  for  false  representations.  Judgment  for  plaintiff,  and 
defendants  bring  exceptions.  Exceptions  sustained. 

BARKER,  J.  The  action  is  tort  for  deceit  in  inducing  the  plaintiff 
to  take  notes  of  a  corporation  by  false  and  fraudulent  representations, 
alleged  to  have  been  made  to  him  by  the  defendants,  that  the  capital 
stock  of  the  corporation,  amounting  to  $150,000,  had  been  paid  in, 
and  that  patents  for  electrical  advertising  devices  of  the  value  of 
$149,650  had  been  transferred  to  it.  From  the  exceptions  it  appears 
that  the  corporation  was  organized  in  January,  1885,  under  the  laws 
of  Maine,  and  engaged  in  business  in  Massachusetts;  that  it  filed 
with  the  commissioner  of  corporations  a  certificate  dated  August 
11,  1885,  required  by  St.  1884,  c.  330,  §  3,1  signed  by  the  defendants, 
with  a  jurat  stating  that  on  that  date  they  had  severally  made  oath 
that  the  certificate  was  true  to  the  best  of  their  knowledge  and  be- 
lief; that  before  the  plaintiff  took  the  notes  the  contents  of  this  cer- 
ificate  had  been  communicated  to  him  by  an  attorney  whom  he  had 
employed  to  examine  the  records,  and  that  he  relied  upon  its  state- 
ments in  accepting  the  notes.  There  was  no  other  evidence  of  the 
making  of  the  alleged  representations.  The  main  question  is 
whether  the  plaintiff  can  maintain  an  action  of  deceit  for  alleged  mis- 
statements  contained  in  the  certificate.  In  the  opinion  of  a  majority 
of  the  court  this  question  should  have  been  decided  adversely  to  the 
plaintiff.  The  execution  by  the  defendants  of  the  certificate  to  en- 
able the  corporation  to  file  it  under  St.  1884,  c.  330,  §  3,  was  too  re- 
mote from  any  design  to  influence  the  action  of  the  plaintiff  to  make 
it  the  foundation  of  an  action  of  deceit.  To  sustain  such  an  action 
misrepresentations  must  either  have  been  made  to  the  plaintiff  in- 
dividually, or  as  one  of  the  public,  or  as  one  of  a  class  to  whom  they 
are  in  fact  addressed,  or  have  been  intended  to  influence  his  conduct 
in  the  particular  of  which  he  complains.  This  certificate  was  not 
communicated  by  the  defendants  or  the  corporation  to  the  public  or 
the  plaintiff.  It  was  filed  with  a  state  official  for  the  definite  purpose 
of  complying  with  a  requirement  imposed  as  a  condition  precedent  to 
the  right  of  the  corporation  to  act  in  Massachusetts.  Its  design  was 
not  to  procure  credit  among  merchants,  but  to  secure  the  right  to 

1  St.  Mass.  1884.  c.  330.  §  3.  provides  that  every  foreign  corporation  doing 
business  in  this  commonwealth  shall  file  with  the  commissioner  of  corpora- 
tions a  copy  of  its  charter  or  certificate  of  incorporation,  and  a  statement 
of  the  amount  of  its  capital  stock,  and  the  amount  paid  in  thereon  to  its 
treasurer;  and,  if  any  part  of  such  payment  has  been  made  otherwise  than  in 
money,  the  statement  shall  set  forth  the  particulars  thereof;  and  said  state- 
ment shall  be  subscribed  and  sworn  to  by  its  president,  treasurer,  and  by  a 
majority  of  its  directors. 


FRAUD    AND    DECEIT.  671 

transact  business  in  the  state.  The  terms  of  the  statute  carry  no  im- 
plication of  such  a  liability.  Statutes  requiring  similar  statements 
from  domestic  corporations  have  been  in  force  here  since  1829,  and 
whenever  it  was  intended  to  impose  a  liability  for  false  statements 
contained  in  them  there  has  been  an  express  provision  to  that  effect ; 
and  a  requisite  of  the  liability  has  uniformly  been  that  the  person  to 
be  held  signed  knowing  the  statement  to  be  false.  St.  1829,  §  90 ; 
Rev.  St.  c.  38,  §  28 ;  Gen.  St.  c.  60,  §  30 ;  St.  1870,  c:  224,  §  38,  cl.  5 ; 
Pub.  St.  c.  106,  §  60,  cl.  5.  To  hold  that  St.  1884,  c.  330,  §  3,  im- 
poses upon  those  officers  of  a  foreign  corporation  who  sign  the  cer- 
tificate, which  is  a  condition  of  its  admission,  th?  added  liability  of 
an  action  of  deceit,  is  to  read  into  the  statute  what  it  does  not  con- 
tain. If  such  an  action  lies,  it  might  have  been  brought  in  many  in- 
stances upon  representations  made  in  returns  required  of  domestic 
corporations,  and  yet  there  is  no  instance  of  such  an  action  in  our 
reports.  In  Fogg'v.  Pew,  10  Gray,  409,  71  Am.  Dec.  G62,  it  is  held 
that  the  misrepresentations  must  have  been  intended  and  allowed  by 
those  making  them  to  operate  on  the  mind  of  the  party  induced,  and 
have  been  suffered  to  influence  him.  In  Bradley  v.  Poole,  98  Mass. 
169,  93  Am.  Dec.  144,  the  representations  proved  and  relied  on  were 
made  personally  by  the  defendant  to  the  plaintiff  in  the  course  of  the 
negotiation  for  the  shares  the  price  of  which  the  plaintiff  sought  to 
recover.  Felker  v.  Yarn  Co.,  148  Mass.  226,  19  N.  E.  220,  was  an 
action  under  Pub.  St.  c.  106,  §  60,  to  enforce  a  liability  explicitly  de- 
clared by  the  statute.  Nor  is  there  any  English  case  which  goes  to 
the  length  necessary  to  sustain  the  plaintiff's  action.  The  English 
cases  fall  under  two  heads;  (1)  Those  of  officers,  members,  or 
agents  of  corporations,  who  have  issued  a  prospectus  or  report  ad- 
dressed to  and  circulated  among  shareholders  or  the  public  for  the 
purpose  of  inducing  them  to  take  shares.  (2)  Those  persons  who  to 
obtain  the  listing  of  stocks  or  securities  upon  the  stock  exchange  in 
order  that  they  may  be  more  readily  sold  to  the  public,  have  made 
representations  to  the  officials  of  the  exchange,  which  in  due  course 
have  been  communicated  to  buyers.  Bagshaw  v.  Seymour,  4  C.  B. 
(N.  S.)  873 ;  Watson  v.  Earl  of  Charlemont,  12  Adol.  &  E.  (N.  S.) 
856 ;  Bedford  v.  Bagshaw,  4  Hurl.  &  N.  537 ;  Clarke  v.  Dickson,  6 
C.  B.  (N.  S.)  453;  Jarrett  v.  Kennedy,  6  C.  B.  319;  Campbell  v. 
Fleming,  1  Adol.  &  E.  40 ;  Peek  v.  Derry,  37  Ch.  Div.  541,  and  L. 
R.  14  App.  Cas.  337 ;  Angus  v.  Clifford,  2  L.  R.  Ch.  449.  In  these 
cases  the  representations  were  clearly  addressed  to  the  plaintiffs, 
among  others  of  the  public  or  of  a  class,  and  were  plainly  intended 
and  calculated  to  influence  their  action  in  the  specific  matter  in  which 
they  claimed  to  have  been  injured.  So,  too,  in  the  American  cases 
relied  on  to  support  the  action.  Morgan  v.  Skiddy,  62  N.  Y.  319 ; 
Terwilliger  v.  Telegraph  Co.,  59  111.  249;  Paddock  v.  Fletcher,  42 
Vt.  389.  The  numerous  cases  cited  in  the  note  to  Pasley  v.  Freeman, 


072  LAW  OF  TORTS. 

2  Smith,  Lead.  Cas.  (9th  Amer.  Ed.)  p.  1320,  are  of  the  same  charac- 
ter. In  the  case  at  bar  the  certificate  was  made  and  filed  for  the 
definite  purpose,  not  of  influencing  the  public,  but  of  obtaining  from 
the  state  a  specific  right,  which  did  not  affect  the  validity  of  its  con- 
tracts, but  merely  relieved  its  agents  in  Massachusetts  of  a  penalty. 
It  was  not  addressed  to  or  intended  for  the  public,  and  was  known  to 
the  plaintiff  only  from  the  search  of  his  attorney.  It  could  not  have 
been  intended  or  designed  by  the  defendants  that  the  plaintiff  should 
ascertain  its  contents,  and  be  induced  by  them  to  take  the  notes.  It 
is  not  such  a  representation  made  by  one  to  another  with  intent  to 
deceive  as  will  sustain  the  action.  Its  statements  are  in  no  fair  sense 
addressed  to  the  person  who  searches  for,  discovers,  and  acts  upon 
them,  and  cannot  fairly  be  inferred  or  found  to  have  been  made  with 
the  intent  to  deceive  him.  This  view  of  the  law  disposes  of  the  case, 
and  makes  it  unnecessary  to  consider  the  other  questions  raised  at 
the  trial.  Demurrer  to  the  second  count  sustained.  Exceptions  sus- 
tained. 
(See,  to  the  same  effect,  Peek  v.  Gurney,  L.  R.  6  H.  L.  377.) 


VI.  FALSE  STATEMENT  MUST  BE  ACTED  UPON  AND 
DAMAGE  RESULT. 

(32  Minn.  197,  20  N.  W.  138.) 

HUMPHREY   v.    MERRIAM    (in    part). 

(Supreme  Court  of  Minnesota.     June  12,  1884.) 

FRAUD — FALSE  REPRESENTATIONS  MUST  BE  ACTED  UPON  BY  PLAINTIFF. 

In  an  action  founded  upon  the  fraud  and  deceit  of  the  defendant  In 
making  false  representations,  it  is  necessary  for  the  plaintiff  to  prove. 
not  only  that  they  were  fraudulently  made,  but  also  that  be  believed  and 
relied  upon  them.  Hence,  where  plaintiff  bought  stock  in  a  mining  com- 
pany after  false  and  material  representations  had  been  made  to  him  by 
defendant's  agent  in  regard  to  the  value,  condition,  and  productiveness  of 
the  company's  mine,  and  as  to  the  amount  of  its  indebtedness,  but  the  evi- 
dence showed  that  plaintiff  did  not  believe  the  agent's  statements,  but  that 
he  interviewed  other  persons  in  regard  to  the  mine  and  acted  upon  the 
information  which  he  obtained  from  them,  held,  that  plaintiff  was  not  en- 
titled to  recover  damages  for  the  loss  he  had  sustained  through  this  in- 
vestment. 

Appeal  from  a  judgment  of  the  District  Court,  Ramsey  County. 

MITCHELL,  J.  This  was  an  action  for  damages  for  deceit  in  the 
sale  of  stock  of  the  Florence  Mining  Company.  The  deceit  con- 
sisted, as  alleged  by  plaintiff,  in  the  false  and  fraudulent  statements 
of  one  Carver,  defendant's  agent,  who  made  the  sale,  as  to  the  value, 
condition,  and  productiveness  of  the  company's  mine,  and  as  to  the 


FRAUD    AND    DECEIT.  673 

amount  of  its  indebtedness.  Assuming  that  the  alleged  representa- 
tions were  made,  and  that  they  were  untrue,  (of  which  facts  there 
was  competent  evidence,)  and  that  they  were  material,  (which  some 
of  them  undoubtedly  were,)  it  was  incumbent  on  plaintiff  in  such  an 
action  also  to  prove  (1)  that  they  were  fraudulently  made ;  and  (2) 
that  he  believed  them,  and  relied  on  them  in  making  the  purchase. 

We  think  the  evidence  utterly  fails  to  show  that  plaintiff  believed 
these  representations,  and  relied  on  them  in  making  the  purchase. 
It  is  true  that  in  his  examination  in  chief  he  states  generally  that  he 
relied  on  them;  but  his  cross-examination  conclusively  shows  that 
he  did  not  rely  on  them  as  true  when  he  made  his  purchase.  He 
makes  the  following  among  other  statements:  "I  wouldn't  let  him 
[Carver]  touch  the  money;  wouldn't  take  his  word  that  he  was 
agent  for  the  man.  I  considered  that  what  he  said  was  wind.  •! 
saw  a  good  many  men  to  see  how  far  Carver's  representations  were 
corroborated.  I  was  anxious  to  see  how  I  could  protect  myself  and 
take  the  stock.  I  didn't  intend  to  take  Carver's  word  that  he  was 
Merriam's  agent.  I  wanted  to  see  that  I  was  dealing  with  a  re- 
sponsible man.  These  representations  of  Carver's  were  as  the  wind, 
unless  they  were  certified  to  by  the  character  of  an  honest  man.  I 
didn't  mean  that  he  should  get  any  money,  and  T  meant  that  Mr. 
Merriam  should  get  my  money,  and  should  have  the  right  to  say  that 
these  things  were  true."  Again,  when  asked  if  he  would  believe  any- 
thing Carver  said,  he  answered,  "No."  When  he  went  to  see  Mer- 
riam he  says  he  made  him  the  speech  which  had  been  taught  him  by 
his  attorneys  on  a  former  occasion ;  "I  have  bought  of  you,  through 
your  agent,  Mr.  Carver,  some  Florence."  When  asked  his  object  in 
making  this  speech,  he  replied,  "To  see  whether  he  would  say  that 
Carver  was  or  was  not  his  agent."  The  evidence  also  shows  that, 
so  far  from  believing  the  statements  of  Carver,  he  interviewed  nu- 
merous other  parties,  stockholders  and  others,  to  ascertain  what 
they  knew  about  the  mine,  and  what  value  they  placed  upon  the 
stock,  and  that,  so  far  as  he  made  the  purchase  upon  a  belief  in  the 
existence  of  facts,  he  acted  upon  what  information  he  got  from  the 
parties,  and  not  upon  what  Carver  told  him. 

The  evidence  clearly  shows  the  plaintiff's  position  to  be  just  this : 
He  knew  that  mines  were  proverbially  uncertain,  and  might  prove 
very  profitable  or  a  failure.  He  found  that  others  had  faith  in  the 
mine,  and  therefore  he  had ;  but  he  wished  something  more  certain, 
and  wanted  a  warranty  from  a  responsible  man,  so  that  he  could 
keep  his  stock  and  get  his  dividends  from  the  mine  if  it  turned  out 
well,  or  get  his  money  back  from  the  defendant  if  it  did  not.  What- 
ever may  have  been  plaintiff's  belief  as  to  the  condition  or  value,  pres- 
ent or  prospective,  of  the  mine,  that  belief  was  not  based  upon  the 
statement  of  Carver.  His  only  reliance  upon  Carver's  statements 
consisted,  not  in  his  belief  of  their  truth,  but  because  he  thought,  if 
CHASE  (2o  ED.) — 43  , 


674  LAW   OF   TORTS. 

false,  Merriam  would  be  responsible  for  them.  He  made  his  pur- 
chase, not  because  of  any  belief  in  their  truthfulness,  but  because  he 
thought  Merriam  would  be  liable  as  warrantor  to  make  them  good 
if  they  proved  untrue.  On  such  a  state  of  facts,  as  the  court  below 
well  remarked,  if  plaintiff  made  out  anything  it  was  a  cause  of  action 
on  a  warranty  and  not  for  deceit.  On  either  or  both  of  these  grounds 
the  action  was  properly  dismissed. 
Judgment  affirmed. 

(To  the  same  effect  are  Ming  v.  Woolfolk,  116  U.  S.  599,  6  Sup.  Ct.  489, 
29  L.  Ed.  740;  Farrar  v.  Churchill,  135  U.  S.  609,  10  Sup.  Ct  771,  34  L.  Ed. 
246;  Bish  v.  Van  Cannon.  94  Ind.  203;  Brackett  v.  Griswold,  112  N.  Y.  454, 
20  N.  E.  376.  In  Southern  Development  Co.  v.  Silva,  125  U.  S.  247,  8  Sup. 
Ct.  881,  31  L.  Ed.  678,  it  is  said  that,  to  prove  fraud,  "complainant  must  show, 
besides  the  making  of  the  false  representation  without  belief  in  its  truth,  that 
the  representation  [a]  was  made  with  intent  that  it  should  be  acted  upon ; 
[b]  that  it  was  acted  upon  by  complainant  to  his  damage;  and  [c]  that  in  so 
acting  on  it  the  complainant  was  ignorant  of  its  falsity,  and  reasonably  be- 
lieved it  to  be  true." 

Refraining  from  action,  in  reliance  upon  false  representations,  and  thereby 
suffering  loss,  affords  also,  for  like  reasons,  a  ground  of  action.  Fottler  v. 
Moseley,  179  Mass.  295,  60  N.  E.  788. 

The  representations  upon  which  plaintiff  acted  need  not  have  been  the  sole 
inducement  to  his  action;  it  is  enough  that  they  formed  one  of  the  induce- 
ments. Harrington  v  Douglas,  181  Mass.  178,  63  N.  E.  334;  Morgan  Y.  Skid- 
dy,  62  N.  Y.  319. 

It  must  also  be  shown  that  the  representations  were  material  to  the  con- 
tract or  transaction  which  took  place  between  the  parties,  and,  further,  that 
injury  or  damage  has  resulted  to  the  party  who  acted  upon  them.  Marshall 
v.  Hubbard,  117  U.  S.  415,  6  Sup.  Ct  806,  29  L.  Ed.  919;  Pasley  v.  Freeman, 
ante,  p.  71',  and  note  thereto.) 


CONFLICT  OF  LAWS  IN  REG-ARD  TO  TORTS. 


([1902]  App.  Cas.  176.) 

CARR  v.  FRACIS  TIMES  &  CO.  (in  part). 
(House  of  Lords.     July  8,  1901.) 

t.  ACTION— LEX  Loci— LEX  FOBI. 

To  found  an  action  for  a  wrong  committed  abroad  the  wrong  must  br- 
anch that  it  would  have  been  actionable  if  committed  in  the  country 
where  the4  action  is  brought,  and  the  act  must  not  have  been  justifiable 
by  the  law  of  the  place  where  it  was  committed. 

2.  RIGHT  OF  ACTION  IN  ENGLAND  FOR  ACTS  IN  FOBEIGN  TERRITORIAL  WATERS. 

British  goods  on  board  a  British  ship  within  the  territorial  waters  of 

Muscat  were  seized  by  an  officer  of  tbe  British  navy  under  the  authority 

of  a  proclamation  issued  by  the  Sultan,  the  sovereign  ruler,  of  Muscat. 


CONFLICT    OF   LAWS   IN    REGARD   TO   TORTS.  675 

Held  that,  the  seizure  having  been  shown  to  be  lawful  by  the  law  of  Mus- 
cat, no  action  could  be  maintained  in  this  country  by  the  owner  of  the 
goods  against  the  naval  officer. 

In  1898  the  appellant,  an  officer  of  the  British  navy  in  command 
of  H.  M.  S.  Lapwing,  acting  under  the  orders  of  the  British  govern- 
ment, seized  in  the  territorial  waters  of  Muscat  ammunition  belong- 
ing to  the  respondents  which  had  been  shipped  by  them  in  London 
on  board  the  Baluchistan.  The  respondents  having  brought  an  ac- 
tion against  the  appellant  for  the  conversion  of  the  goods,  the  defense 
was  that  the  seizure  was  lawful  by  the  law  of  Muscat,  having  been 
authorized  by  a  proclamation  issued  by  the  Sultan,  the  sovereign 
ruler,  of  Muscat,  and  pronounced  to  be  lawful  by  a  court  of  inquiry 
in  Muscat,  whose  decision  was  confirmed  by  the  Sultan.  Evidence 
of  this  was  given  at  the  trial.  Grantham,  J.,  who  tried  the  case  with 
a  jury,  entered  judgment  for  the  defendant.  The  Court  of  Appeal 
(A.  L.  SMITH,  VAUGHAN  WILLIAMS,  and  ROMER,  L.  JJ.) 
reversed  this  decision,  and  entered  judgment  for  the  plaintiff  for  the 
value  of  the  ammunition. 

LORD  MACNAGHTEN.  The  respondents,  who  are,  or  were, 
merchants  carrying  on  business  in  London,  Bushire,  and  Muscat,  sue 
the  appellant,  a  captain  in  the  British  navy,  for  an  alleged  wrong  com- 
mitted abroad.  He  seized  their  goods,  as  they  allege,  illegally,  and 
they  claim  compensation  in  damages. 

Now,  it  is  well  settled  by  a  series  of  authorities  (of  which  the  latest 
is  the  case  of  Phillips  v.  Eyre,  L.  R.  6  Q.  B.  1,  in  the  Exchequer 
Chamber),  that  in  order  to  found  an  action  in  this  country  for  a 
wrong  committed  abroad  two  conditions  must  be  fulfilled.  In  the 
first  place,  the  wrong  must  be  of  such  a  character  that  it  would  have 
been  actionable  if  committed  in  England ;  and,  secondly,  the  act  must 
not  have  been  justifiable  by  the  law  of  the  place  where  it  was  com- 
mitted. In  the  present  case  the  whole  question  turns  upon  the  sec- 
ond proposition.  It  is  not  disputed  that  the  alleged  wrong  would 
have  been  actionable  if  it  had  been  committed  in  England  or  on  the 
high  seas.  It  was,  however,  committed  within  the  dominions  of  the 
Sultan  of  Muscat,  who  is  duly  proved  to  be  an  independent  sovereign. 
It  \yas  committed  in  the  territorial  waters  of  Muscat,  which  are,  in 
my  opinion,  for  this  purpose,  as  much  a  part  of  the  Sultan's  domin- 
ions as  the  land  over  which  he  exercises  absolute  and  unquestioned 
sway. 

The  appellant  says  that  the  act  complained  of  was  done  under  the 
authority  and  by  the  direction  of  the  Sultan ;  that  he  adopted  it  as 
his  act,  and  declared  it  to  be  legal.  In  support  of  this  assertion  the 
appellant  relies  upon  two  documents — the  proclamation  of  January 
13,  1898,  and  the  report  of  April  15,  1898,  adopted  and  confirmed  by 


676  LAW  OF  TORTS. 

the  Sultan  himself.     The  real  question  is,  what  is  the  true  meaning 
and  effect  of  these  documents? 

The  respondents  contend  that  the  documents  in  question  come  to 
nothing  more  than  this :  That  the  Sultan  of  Muscat  announced  by 
formal  proclamation  that  so  far  as  he  was  concerned  her  Britannic 
Majesty  was  welcome  to  seize  munitions  of  war  destined  for  Indian 
or  Persian  ports,  if  they  were  the  property  of  British  subjects,  when 
found  within  the  territorial  waters  of  Muscat;  that  he  would  not 
resent  such  an  act  as  an  invasion  of  his  sovereignty;  and  that  after- 
wards, on  inquiry,  he  declared  that  he  was  satisfied  that  her  Britannic 
Majesty  had  done  no  more  than  he  had  permitted  her  to  do.  I  do 
not  think  that  this  was  the  meaning  of  these  documents.  I  think 
the  meaning  was  that  the  act,  if  done,  was  to  be  done  under  his 
authority,  as  his  act,  and  that  after  inquiry  he  adopted  the  act  as  his 
own,  and  declared  it  to  be  legal — legal,  that  is,  according  to  the  law 
of  Muscat,  which,  for  anything  I  know  to  the  contrary,  may  be  noth- 
ing more  than  the  will  and  pleasure  of  the  despot  who  rules  over  that 
country.  If  this  was  the  true  meaning  of  these  documents — if  the 
act  was  legal  in  Muscat,  and  therefore  justifiable  there — in  my  opin- 
ion there  is  a  conclusive  answer  to  the  action,  and  I  am  therefore  of 
opinion  that  the  appeal  must  be  allowed. 
,  Order  of  Court  of  Appeal  reversed. 

(To  the  same  effect  is  Machado  v.  Fontes  [1897]  2  Q.  B.  231,  holding  that  an 
action  would  lie  in  England  for  a  libel  published  in  Brazil.) 


(117  Mass.  109,  19  Am.  Rep.  400.) 

LB  FOREST  v.  TOLMAN. 
(Supreme  Judicial  Court  of  Massachusetts.     Middlesex.     Jan.  27,   1875.) 

ACTION— LEX  Loci— LEX  FOBI— PERSONAL  INJURIES  IN  OTHER  STATE. 

Where  a  dog,  owned  and  kept  in  one  state,  strayed  into  another  state, 
and  there  bit  a  person,  and  there  was  no  proof  of  scienter,  it  was  held 
that  no  action  lay  against  the  owner  or  keeper  in  the  state  of  his  residence 
for  such  injury,  since  an  action  therefor  could  not  have  been  maintained 
In  the  state  where  the  injury  occurred. 

Tort,  under  Gen.  St.  c.  88,  §  59,  to  recover  double  the  amount  of  the 
damage  sustained  from  the  bite  of  a  dog. 

At  the  trial  in  the  superior  court,  before  Aldrich,  J.,  it  appeared 
that  the  plaintiff  was  bitten  and  injured  by  the  defendant's  dog  at 
Pelham,  in  the  state  of  New  Hampshire,  where  the  plaintiff  lived 
with  his  father  and  mother;  that  the  defendant  was  a  resident  of 
Dracut,  in  this  commonwealth,  and  had  a  place  of  business  in  Lowell, 
and  kept  his  dog  at  Dracut  and  at  his  place  of  business  in  Lowell; 
that  the  day  the  injuries  complained  of  were  done  the  defendant's 
dog  strayed  away  from  his  owner  into  New  Hampshire,  and  was  seen 


CONFLICT   OF   LAWS   IN    REGARD   TO   TORTS.  G77 

several  times  in  the  neighborhood  of  the  plaintiff's  residence;  that 
the  next  day  the  plaintiff's  father  received  the  dog  and  carried  him 
to  the  defendant  at  his  place  of  business  in  Lowell.  Upon  this  state 
of  facts,  the  defendant  asked  the  judge  to  rule  that  the  action  could 
not  be  maintained,  which  the  judge  declined  to  do.  The  jury  re- 
turned a  verdict  for  the  plaintiff,  and  the  defendant  alleged  excep- 
tions. 

GRAY,  C.  J.  In  order  to  maintain  an  action  of  tort,  founded 
upon  an  injury  to  person  or  property,  and  not  upon  a  breach  of  con- 
tract, the  act  which  is  the  cause  of  the  injury  and  the  foundation  of 
the  action  must  at  least  be  actionable  or  punishable  by  the  law  of  the 
place  in  which  it  is  done,  if  not  also  by  the  law  of  the  place  in  which 
redress  is  sought.  Smith  v.  Condry,  1  How.  28,  17  Pet.  20,  11  L. 
Ed.  35;  The  China,  7  Wall.  53,  64,  19  L.  Ed.  67;  Blad's  Case,  3 
Swanst.  603;  Blad  v.  Bamfield,  Id.  604;  General  Steam  Navigation 
Co.  v.  Guillou,  11  M.  &  W.  877 ;  Phillips  v.  Eyre,  L.  R.  4  Q.  B.  225, 
239,  and  L.  R.  6  Q.  B.  1 ;  The  Halley,  L.  R.  2  Adm.  3,  and  L.  R.  2 
P.  C.  103 ;  Stout  v.  Wood,  1  Blackf.  71 ;  Wall  v.  Hoskins,  27  N.  C. 
177 ;  Mahler  v.  Norwich  &  N.  Y.  Transp.  Co.,  35  N.  Y.  352 ;  Need- 
ham  v.  Grand  Trunk  Ry.,  38  Vt.  294;  Richardson  v.  New  York 
Cent.  R.  Co.,  98  Mass.  85. 

In  the  case  at  bar  the  injury  sued  for  was  done  to  the  plaintiff  in 
New  Hampshire  by  a  dog  owned  and  kept  by  the  defendant  in  Massa- 
chusetts. Such  an  action  could  not  be  maintained  at  common  law, 
without  proof  that  the  defendant  knew  that  his  dog  was  accustomed 
to  attack  and  bite  mankind.  Popplewell  v.  Pierce,  10  Cush.  509 ; 
Pressey  v.  Wirth,  3  Allen,  191.  No  evidence  of  such  knowledge,  or 
of  the  law  of  New  Hampshire,  was  introduced  at  the  trial.  Nor  is 
it  contended  that  the  defendant  would  be  liable  to  any  action  or  in- 
dictment by  the  laws  of  that  state. 

The  plaintiff  relies  upon  the  statute  of  this  commonwealth,  which 
provides  that  "every  owner  or  keeper  of  a  dog  shall  forfeit  to  any 
person  injured  by  it  double  the  amount  of  the  damage  sustained  by 
him,  to  be  recovered  in  an  action  of  tort."  Gen.  St.  c.  88,  §  59. 
This  statute  is  not  a  penal,  but  a  remedial,  statute,  giving  all  the 
damages  to  the  person  injured.  Mitchell  v.  Clapp,  12  Cush.  278. 
It  does  not  declare  the  owning  or  keeping  of  a  dog  to  be  unlawful, 
but  that  if  the  dog  injures  another  person  the  owner  or  keeper  shall 
be  liable,  without  regard  to  the  question  whether  he  had  or  had  not 
a  license  to  keep  the  dog.  The  wrong  done  to  the  person  injured 
consists,  not  in  the  act  of  the  master  in  owning  or  keeping,  or  neglect- 
ing to  restrain,  the  dog,  but  in  the  act  of  the  dog,  for  which  the  mas- 
ter is  responsible. 

The  defendant  having  done  no  wrongful  act  in  this  commonwealth, 
and  the  injury  for  which  the  plaintiff  seeks  to  recover  damages  hav- 


678  LAW  OP  TORTS. 

ing  taken  place  in  New  Hampshire,  and  not  being  the  subject  of  ac- 
tion or  indictment  by  the  laws  of  that  state,  this  action  cannot  be 
maintained. 

Exceptions  sustained. 

(A  later  Massachusetts  case  holds  that  "if,  by  the  law  of  another  state 
where  a  personal  injury  is  suffered,  a  recovery  may  be  had  there,  an  action 
may  be  maintained  for  the  injury  here,  although  the  plaintiff  could  not  have 
recovered  therefor  if  the  injury  had  happened  here";  thus  establishing  a 
broader  rule  than  is  established  in  England.  Walsh  v.  New  York  &  X.  E. 
R.  Co.,  160  Mass.  571,  36  N.  E.  584,  39  Am.  St.  Rep.  514;  followed  in  Bence 
v.  New  York,  N.  H.  &  H.  R.  Co.,  181  Mass.  221,  63  N.  E.  417 ;  see  also  Her- 
rick  v.  Minneapolis  &  St.  L.  R.  Co.,  31  Minn.  11,  16  N.  W.  413,  47  Am.  Rep. 
771.  The  difference  in  the  authorities  on  this  subject  is  pointed  out  in  Hunt- 
ington  v.  Attrill,  146  U.  S.  657,  670,  13  Sup.  Ct.  224,  228,  36  L.  Ed.  1123,  as 
follows :  "In  order  to  maintain  an  action  for  an  injury  to  the  person  or 
to  movable  property,  some  courts  have  held  that  the  wrong  must  be  one 
which  would  be  actionable  by  the  "law  of  the  place  where  the  redress  is  sought, 
as  well  as  by  the  law  of  the  place  where  the  wrong  was  done.  See,  for  ex- 
ample, The  Halley,  L.  R.  2  P.  C.  193,  204;  Phillips  v.  Eyre,  L.  R.  6  Q.  B.  1, 

28,  29;    The  M.  Moxham,  1  P.  D.  107,  111;    Wooden  v.  Western  N.  Y.  &  P. 
R.  Co.,  126  N.  Y.  10,  26  N.  E.  1050,  13  L.  R.  A.  458,  22  Am.  St.  Rep.  803;   Ash 
v.  Baltimore  &  O.  R.  Co.,  72  Md.  144,  19  Atl.  643,  20  Am.  St.  Rep.  461.     But 
such  is  not  the  law  of  this  court.     By  our  law,  a  private  action  may  be  main- 
tained in  one  state,  if  not  contrary  to  its  own  policy,  for  such  a  wrong  done  in 
another  and  actionable  there,  although  a  like  wrong  would  not  be  actionable 
in  the  state  where  the  suit  is  brought.     Smith  v.  Condry,  1  How.  28,  11  L. 
Ed.  35;   The  China,  7  Wall.  53,  54,  19  L.  Ed.  67;    The  Scotland.  105  U.  S.  24, 

29,  26  L.  Ed.  1001;    Dennick  v.  Central  R.  Co.,  103  U.  S.  11,  26  L.  Ed.  439; 
Texas  &  P.  R.  Co.  v.  Cox,  145  U.  S.  593,  12  Sup.  Ct  905,  36  L.  Ed.  829."     In 
accord  with  this  latter  doctrine  are  Northern  Pac.  R.  Co.  v.  Babcock,  154  U. 
S.  190,  14  Sup.  Ct.  978,  38  L.  Ed.  958;    Higgins  v.  Central  N.  E.  &  W.  R.  Co., 
155  Mass.  176,  180,  29  N.  E.  534,  31  Am.  St.  Rep.  544;   Evey  v.  Mexican  Cent. 
R.  Co.,  81  Fed.  294,  26  C.  C.  A.  407,  38  L.  R.  A,  387 ;   cf.  Johnson  v.  Chicago 
&  N.  W.  R.  Co.,  91  Iowa,  248,  59  N.  W.  66. 

In  New  York  it  is  held  to  be  discretionary  with  the  courts  whether  they 
shall  entertain  jurisdiction  of  actions  between  non-residents  for  personal  in- 
juries, when  the  injury  was  committed  outside  of  the  state.  Burdick  v. 
Freeman,  120  N.  Y.  420,  24  N.  E.  949;  Collard  v.  Beach,  81  App.  Div.  582, 
SI  N.  Y.  Supp.  619. 

Where  an  action  was  brought  in  Ohio  for  an  injury  caused  in  Pennsylvania, 
and  the  law  of  the  latter  state  gave  no  cause  of  action  in  such  a  case,  it  was 
held  that  the  action  in  Ohio  was  not  maintainable,  even  though  the  laws 
of  Ohio  would  have  given  full  relief  had  the  transaction  occurred  within  that 
state.  Alexander  v.  Pennsylvania  Co.,  48  Ohio  St.  623,  30  N.  E.  69.  In  other 
words,  the  lex  loci  delicti,  not  the  lex  fori,  determines  as  to  whether  there  is  a 
cause  of  action,  Alabama  G.  S.  R.  Co.  v.  Carroll,  97  Ala.  126,  11  South. 
803,  18  L.  R.  A.  433,  38  Am.  St.  Rep.  163.) 


CONFLICT   OF   LAWS  IN   REGARD   TO   TORTS.  679 

(158  U.  S.  105,  15  Sup.  Ct  771,  39  L.  Ed.  913.) 

ELLENWOOD  v.  MARIETTA  CHAIR  CO.  (in  part). 

(Supreme  Court  of  the  United  States.    May  6,  1895.) 

No.  234. 

ACTION  FOB  TRESPASS  ON  LAND  A  LOCAL  ACTION. 

An  action  for  trespass  uprfn  land,  like  an  action  to  recover  the  title  or 
the  possession  of  the  land  itself,  is  a  local  action,  and  can  only  be  brought 
within  the  state  in  which  the  land  lies. 

In  Error  to  the  Circuit  Court  of  the  United  States  for  the  Southern 
District  of  Ohio. 
The  case  is  stated  in  the  opinion. 

Mr.  Justice  GRAY.  This  action  was  brought  in  the  circuit  court 
of  the  United  States  for  the  Southern  District  of  Ohio  by  one  Walton, 
administrator  of  the  estate  of  Latimer  Bailey,  deceased,  and  a  citizen 
of  New  Jersey,  against  the  Marietta  Chair  Company,  a  corporation 
of  Ohio. 

By  the  law  of  England,  and  of  those  states  of  the  Union  whose 
jurisprudence  is  based  upon  the  common  law,  an  action  for  trespass 
upon  land,  like  an  action  to  recover  the  title  or  the  possession  of  the 
land  itself,  is  a  local  action,  and  can  only  be  brought  within  the 
state  in  which  the  land  lies.  Livingston  v.  Jefferson,  1  Brock.  203, 
Fed.  Cas.  No.  8,411;  McKenna  v.  Fisk,  1  How.  241,  247,  11  L.  Ed. 
117;  Northern  I.  R.  Co.  v.  Michigan  Cent.  R.  Co.,  15  How.  233,  243, 
251,  14  L.  Ed.  674 ;  Huntington  v.  Attrill,  146  U.  S.  657,  669,  670, 
13  Sup.  Ct.  224,  36  L.  Ed.  1123;  British  South  Africa  Co.  v.  Com- 
panhia  De  Moqambique  [1893]  App.  Cas.  602;  Cragin  v.  Lovell,  88 
N.  Y.  258;  Allin  v.  Lumber  Co.,  150  Mass.  560,  23  N.  E.  581,  6  L. 
R.  A.  416;  Thayer  v.  Brooks,  17  Ohio,  489,  492,  49  Am.  Dec.  474; 
Kinkead,  Code  PI.  §  35. 

The  original  petition  contained  two  counts,  the  one  for  trespass 
upon  land,  and  the  other  for  taking  away  and  converting  to  the  de- 
fendant's use  personal  property ;  and  the  cause  of  action  stated  in  the 
second  count  might  have  been  considered  as  transitory,  although  the 
first  was  not.  McKenna  v.  Fisk,  above  cited;  Williams  v.  Breedon. 
1  Bos.  &  P.  329. 

But  the  petition,  as  amended  by  the  plaintiff  on  motion  of  the 
defendant,  and  by  order  and  leave  of  the  court,  contained  a  single 
count,  alleging  a  continuing  trespass  upon  the  land  by  the  defendant, 
through  its  agents,  and  its  cutting  and  conversion  of  timber  growing 
thereon.  This  allegation  was  of  a  single  cause  of  action,  in  which 
the  trespass  upon  the  land  was  the  principal  thing,  and  the  conversion 
of  the  timber  was  incidental  only,  and  could  not,  therefore,  be  main- 
tained by  proof  of  the  conversion  of  personal  property  without  also 


080  LAW  OF  TORTS. 

proving  the  trespass  upon  real  estate.  Cotton  v.  U.  S.,  11  How.  229, 
13  L.  Ed.  675 ;  Eames  v.  Prentice,  8  Cush.  337 ;  Howe  v.  Willson, 
1  Denio,  181;.  Dodge  v.  Colby,  108  N.  Y.  445,  15  N.  E.  703;  Merri- 
man  v.  Harvesting  Mach.  Co.,  86  Wis.  142,  56  N.  W.  743.  The  en- 
tire cause  of  action  was  local.  The  land  alleged  to  have  been  tres- 
passed upon  being  in  West  Virginia,  the  action  could  not  be  main- 
tained in  Ohio.  The  circuit  court  of  the  United  States,  sitting  in 
Ohio,  had  no  jurisdiction  of  the  cause  of  action,  and  for  this  reason, 
if  for  no  other,  rightly  ordered  the  case  to  be  stricken  from  its  docket, 
although  no  question  of  jurisdiction  had  been  made  by  demurrer  or 
plea.  British  South  Africa  Co.  v.  Companhia  De  Mozambique 
[1893]  App.  Cas.  602,  621;  Weidner  v.  Rankin,  26  Ohio  St.  522; 
Youngstown  v.  Moore,  30  Ohio  St.  133 ;  Rev.  St.  Ohio,  §  50G4. 
Judgment  affirmed. 

(Nearly  all  the  authorities  support  this  doctrine  as  to  actions  for  trespass 
on  realty.  Barrett  v.  Palmer,  135  N.  Y.  336,  31  N.  E.  1017,  17  L.  R.  A.  720,  31 
Am.  St.  Rep.  835 ;  American  Union  Tel.  Co.  v.  -Middleton,  80  N.  T.  408 ;  Niles 
v.  Howe,  57  Vt  388;  Du  Breuil  v.  Pennsylvania  Co.,  130  Ind.  137,  29  N.  E. 
909 ;  Eachus  v.  Trustees  of  Illinois  &  M.  Canal,  17  111.  534.  But  in  Minnesota 
it  has  been  held  to  be  a  transitory  action.  Little  v.  Chicago,  St.  P.,  M.  &  O.  R. 
Co.,  65  Minn.  48,  67  N.  W.  846,  33  L.  R.  A.  423,  60  Am.  St.  Rep.  421.) 


(88  Va.  971,  14  S.  E.  838,  15  L.  R.  A.  583.) 

NELSON'S  ADM'R  v.  CHESAPEAKE  &  O.  RY.  CO.  (In  part). 
(Supreme  Court  of  Appeals  of  Virginia.    March  31,  1892.) 

4criON  FOB  WRONGFUL  DEATH — CONFLICT  OF  LAWS — JURISDICTION  OF  DOMES- 
TIC COURT. 

An  action  to  recover  damages  for  a  death  caused  by  the  wrongful  act 
of  another,  though  statutory  only,  may  be  maintained  in  another  state 
than  that  in  which  the  injury  was  committed,  if  it  be  not  inconsistent  with 
the  laws  or  public  policy  of  the  state  in  which  the  suit  is  brought,  or 
prejudicial  to  its  interests.  Thus  where  plaintiff's  intestate  was  killed, 
through  defendant's  negligence,  in  West  Virginia,  where  a  statute  was  in 
force  allowing  a  recovery  of  damages  by  action  in  such  cases,  it  was  held 
proper  to  institute  the  action  in  the  state  of  Virginia,  where  defendant  was 
found,  the  right  to  recover  in  such  case  to  be  governed  by  the  statute  of 
West  Virginia  ;  such  statute  not  being  inconsistent  with  the  laws  or  policy 
of  the  state  of  Virginia. 

Error  to  Circuit  Court  of  City  of  Richmond;  B.  R.  Wellford, 
Judge. 

Action  by  the  administrator  of  Andrew  Nelson,  deceased,  against 
the  Chesapeake  &  Ohio  Railway  Company  to  recover  damages  for 
the  negligent  killing  of  plaintiff's  intestate.  Deceased  was  a  laborer 
on  the  line  of  defendant's  road,  in  West  Virginia,  and  while  being 
transferred  from  the  point  where  he  was  employed  to  another  point 


CONFLICT  OF   LAWS   IN   REGARD   TO   TORTS.  681 

on  the  line  in  the  same  state,  and  while  riding  on  top  of  one  of  de- 
fendant's cars,  pursuant  to  the  direction  of  the  defendant's  agents, 
was  brushed  off  the  car  by  a  timber  on  the  bridge,  which  had  been 
negligently  allowed  to  remain  attached  to  the  bridge  a  few  feet  above 
the  top  of  the  car.  Deceased  at  the  time  of  his  death  was  a  citizen 
and  resident  of  Virginia,  and  plaintiff  qualified  as  his  administrator 
in  the  county  in  which  deceased  resided.  To  a  judgment  of  the  cir- 
cuit court,  sustaining  a  demurrer,  plaintiff  sued  out  a  writ  of  error. 
Reversed. 

LEWIS,  P.  If  the  statute  of  West  Virginia  giving  the  right  to 
sue  in  a  case  like  this  were  a  penal  statute,  it  is  clear  that  the  present 
action  could  not  be  maintained,  for  the  courts  of  one  state  do  not 
execute  the  penal  laws  of  another,  such  laws  being  strictly  local. 
Story,  Confl.  Laws,  §  621;  The  Antelope,  10  Wheat.  66,  6  L.  Eel. 
268.  But  the  statute  is  not  penal,  but  compensatory,  in  its  nature; 
its  object  being  to  give  a  remedy  for  certain  injuries,  not  as  a  punish- 
ment to  the  defendant,  primarily  for  the  benefit  of  those  who  are 
supposed  to  have  been  pecuniarily  injured  by  the  death  of  the  de- 
ceased. It  is  contended,  however,  that  the  statute,  whatever  may 
be  its  nature,  can  have  no  extraterritorial  operation,  and,  therefore, 
that  an  action  dependent  upon  it  can  be  maintained  only  in  the  state 
of  West  Virginia.  At  common  law,  all  personal  actions,  whether  ex 
delicto  or  ex  contractu,  are  transitory,  and  may  be  brought  anywhere 
the  defendant  can  be  found.  Thus,  for  instance,  an  assault  and  bat- 
tery committed,  or  a  contract  made,  in  one  state,  may  be  the  subject 
of  an  action  in  another,  if  process  can  be  served  on  the  defendant  in 
the  latter  state.  3  Bl.  Comm.  294;  Mostyn  v.  Fabrigas,  Cowp.  161; 
Livingston  v.  Jefferson,  1  Brock.  203,  Fed.  Cas.  No.  8,411;  Payne 
v.  Britton,  6  Rand.  (Va.)  101;  Watts  v.  Thomas,  2  Bibb,  458;  Mc- 
Kenna  v.  Fisk,  1  How.  241,  11  L.  Ed.  117 ;  2  Smith,  Lead.  Cas.  (9th 
Ed.)  967.  Independently  of  statute,  however,  the  general  rule  is  that 
all  torts  die  with  the  person.  Consequently  the  right  to  sue  for  per- 
sonal injuries  causing  death  is  purely  statutory.  The  question,  there- 
fore, arises,  whether  such  a  cause  of  action  arising  in  one  state  may 
be  asserted  in  another.  There  is  no  doubt  that,  in  a  general  sense, 
a  statute  can  have  no  operation  beyond  the  state  in  which  it  is  en- 
acted. But  where  a  right  to  sue  is  given  by  statute  in  one  state 
we  can  see  no  good  reason  why  an  action  to  enforce  that  right  should 
not  be  entertained  in  the  courts  of  another  state,  on  the  ground  of 
comity,  just  as  if  it  were  a  common-law  right,  provided,  of  course 
it  be  not  inconsistent  with  the  laws  or  policy  of  the  latter  state.  If 
this  were  not  so,  a  cause  of  action  arising  in  a  state  whose  laws  are 
codified  could  not  be  asserted  in  another  state,  because  the  right  to 
sue  is  statutory.  The  true  test,  therefore,  in  all  such  cases  would 
seem  to  be  this :  Is  the  foreign  statute  contrary  to  the  known  pol- 


682  LAW  OF  TORTS. 

icy,  or  prejudicial  to  the  interest,  of  the  state  in  which  the  suit  is 
brought?  And  if  it  is  not,  then  it  makes  no  difference  whether  the 
right  asserted  be  given  by  the  common  law  or  by  statute.  There 
are  undoubtedly  cases  which  hold  a  contrary  doctrine.  Woodard  v. 
Railroad  Co.,  10  Ohio  St.  121 ;  Richardson  v.  Railroad  Co.,  98  Mass. 
85 ;  McCarthy  v.  Railroad  Co.,  18  Kan.  46,  26  Am.  Rep.  742 ;  Ash 
v.  Railroad  Co.,  72  Md.  144,  19  Atl.  643,  20  Am.  St.  Rep.  461.  The 
case  of  Vawter  v.  Railway  Co.,  84  Mo.  679,  54  Am.  Rep.  105,  has 
also  been  referred  to  for  the  defendant;  but  that  case  went  off  on 
the  ground,  principally,  that  the  action  was  prohibited  by  the  laws 
of  Missouri.  On  the  other  hand,  by  far  the  greater  number  of  the 
more  recent  decisions,  and  in  fact  the  almost  entire  current  of  author- 
ity, support  the  view  we  have  expressed.  In  Dennick  v.  Railroad 
Co.,  103  U.  S.  11,  26  L.  Ed.  439,  an  action  was  brought  in  a  state 
court  of  New  York,  and  afterwards  removed  to  a  federal  court,  to 
recover  damages  for  injuries  causing  the  death  of  the  plaintiff's  intes- 
tate in  New  Jersey.  The  action  was  brought  under  a  statute  of  the 
latter  state,  and  the  question  was  whether  it  could  be  maintained  in 
New  York.  The  supreme  court  held  that  it  could,  although  it  was 
conceded  that  the  right  to  sue  depended  solely  upon  the  New  Jersey 
statute.  In  the  course  of  the  opinion,  delivered  by  Mr.  Justice  Miller, 
it  was  said:  "It  is  difficult  to  understand  how  the  nature  of  the 
remedy,  or  the  jurisdiction  of  the  court  to  enforce  it,  is  in  any  manner 
dependent  on  the  question  whether  it  is  a  statutory  right  or  a  com- 
mon-law right.  Whenever,  either  by  the  common  law  or  the  statute 
law  of  a  state,  a  right  of  action  has  become  fixed,  and  a  legal  li- 
ability incurred,  that  liability  may  be  enforced  and  the  right  of  action 
pursued  in  any  court  which  has  jurisdiction  of  such  matters,  and  can 
obtain  jurisdiction  of  the  parties."  And,  referring  to  the  Ohio, 
Massachusetts,  and  Kansas  cases,  (supra,)  it  was  said :  "The  reasons 
which  support  that  view  we  have  endeavored  to  show  are  not  sound." 
A  similar  question  had  shortly  before  been  decided  in  the  same  way 
by  the  court  of  appeals  of  New  York,  in  Leonard  v.  Navigation  Co., 
84  N.  Y.  48,  38  Am.  Rep.  491.  In  that  case  it  was  held  that  an 
action  is  maintainable  in  New  York  by  the  personal  representatives 
of  one  whose  death  is  caused  by  injuries  received  in  another  state, 
whose  statute  is  similar  to  that  of  New  York  on  the  same  subject. 
It  is  not  essential,  it  was  said,  that  the  two  statutes  should  be  pre- 
cisely the  same.  The  plaintiff,  however,  as  was  decided  in  a  subse- 
quent case,  must  both  aver  and  prove  that  the  action  is  authorized 
by  the  laws  of  the  state  in  which  the  wrong  was  committed.  Debe- 
voise  v.  Railroad  Co.,  98  N.  Y.  377,  50  Am.  Rep.  683.  Like  decisions 
have  been  rendered  in  Tennessee,  Mississippi,  Iowa,  Nebraska,  In- 
diana, Minnesota,  Kentucky,  Pennsylvania,  and  perhaps  in  other 
states.  See  Railroad  v.  Sprayberry,  8  Baxt.  341,  35  Am.  Rep.  705; 
Railroad  Co.  v.  Doyle,  60  Miss.  977;  Railroad  Co.  v.  Crudup,  63 


CONFLICT   OF   LAWS   IN    REGARD   TO   TORTS.  683 

Miss.  291 ;  Morris  v.  Railway  Co.,  65  Iowa,  727,  23  N.  W.  143,  54 
Am.  Rep.  39 ; '  Railroad  Co.  v.  Lewis,  24  Neb.  848,  40  N.  W.  401,  2 
L.  R.  A.  67;  Burns  v.  Railroad  Co.,  113  Ind.  169,  15  N.  W.  230; 
Herrick  v.  Railroad  Co.,  31  Minn.  11, 16  N.  W.  413,  47  Am.  Rep.  771; 
Bruce  v.  Railroad  Co.,  83  Ky.  174,  (overruling  Taylor  v.  Pennsyl- 
vania Co.,  78  Ky.  348,  39  Am.  Rep.  244) ;  Knight  v.  Railroad  Co., 
108  Pa.  250,  56  Am.  Rep.  200.  In  the  last-mentioned  case  the  court 
concludes  a  discussion  of  the  subject  by  remarking  that  the  great 
weight  of  authority  favors  the  application  of  the  same  rule  to  all 
transitory  actions  for  injuries,  whether  recognized  by  the  common 
law  or  by  statute,  unless  contrary  to  the  policy  of  the  state  in  which 
the  action  is  brought.  "The  claim  of  comity  on  which  the  rule  is 
founded,"  it  was  said,  "is  as  urgent  in  one  case  as  the  other."  This 
case  was  considered  by  the  court  in  Usher  v.  Railroad  Co.,  126  Pa. 
206,  17  Atl.  597,  4  L.  R.  A.  261,  12  Am.  St.  Rep.  863,  as  having  set- 
tled the  doctrine  in  Pennsylvania,  although  it  was  held  in  the  latter 
case  that  the  action  could  not  be  maintained  by  the  widow  of  the 
deceased,  who  was  killed  in  New  Jersey,  because  the  statute  of  New 
Jersey  required  the  suit  to  be  brought  in  the  name  of  the  personal 
representative.  If  a  different  doctrine  were  established, — that  is  to 
say,  if  an  action  could  be  brought  only  in  the  state  in  which  the 
wrong  is  committed, — then  the  wrong-doer,  by  removing  and  absent- 
ing himself  from  the  state,  could  not  be  personally  sued  at  all.  We 
do  not  think  this  was  the  intent  of  the  statute  we  are  asked  to  en- 
force. Why,  then,  should  it  not  be  enforced?  It  is  true  it  is  not 
precisely  similar  to  our  own  statute,  yet  it  is  not  essentially  dissimilar. 
Indeed,  in  several  important  particulars  the  two  statutes  are  exactly 
alike.  Thus,  both  require  the  action  to  be  brought  by  the  personal 
representative ;  both  limit  the  recovery  to  $10,000 ;  and  under  both, 
in  a  case  the  facts  of  which  are  like  those  of  the  present  case,  the 
recovery  inures  to  the  benefit  of  the  same  person,  namely,  the  father 
of  the  deceased. 

Judgment  reversed. 

(In  regard  to  actions  of  this  kind,  under  statutes,  for  Injuries  causing 
death,  there  Is  a  like  difference  of  opinion  among  the  authorities  to  that 
quoted  above  on  page  678,  from  Huntington  v.  Attrill,  146  U.  S.  657,  670,  13 
Sup.  Ct.  224,  36  L.  Ed.  1123.  In  New  York  and  some  other  states  the  action 
is  not  maintainable  unless  the  state  wherein  the  action  is  brought  has  a 
statute  on  the  subject  similar  to  that  of  the  state  where  the  injury  took  place ; 
In  New  York,  however,  It  is  said  that  the  statutes  need  not  be  precisely 
alike,  but  it  Is  enough  if  they  are  of  similar  import  and  character,  founded 
upon  the  same  principle,  and  possessing  the  same  general  attributes.  Wooden 
v.  Western  N.  Y.  &  P.  R.  Co.,  126  N.  Y.  10,  26  N.  E.  1050,  13  L.  R.  A.  458,  22 
Am.  St  Rep.  803;  Harrill  v.  South  Carolina  R.  Co.,  132  N.  C.  655,  44  S.  E. 
109;  Cincinnati,  H.  &  D.  R.  Co.  v.  McMullen,  117  Ind.  439,  20  N.  E.  287, 
10  Am.  St.  Rep.  67;  O'Reilly  v.  New  York  &  N.  E.  R.  Co.,  16  R.  I.  388,  17 
Atl.  171,  906,  19  Atl.  244,  5  L.  R.  A.  364,  6  L.  R.  A.  719;  Knight  v.  West 
Jersey  R.  Co.,  108  Pa.  250,  56  Am.  Rep.  200.  On  the  other  hand,  the  federal 


684  LAW  OF  TORTS. 

courts  hold  that  an  action  for  such  a  tort  can  be  maintained  "where  the 
statute  of  the  state  In  which  the  cause  of  action  arose  is  not  in  substance 
inconsistent  with  the  statutes  or  public  policy  of  the  state  in  which  the 
right  of  action  is  sought  to  be  enforced."  Stewart  v.  Bait  &  O.  R.  Co.,  168 
U.  S.  445,  18  Sup.  Ct  105,  42  L.  Ed.  537;  Burrell  v.  Fleming,  109  Fed.  489, 
47  C.  C.  A.  598.  To  the  same  effect  are  Herrick  v.  Minneapolis  &  St.  L.  R. 
Co.,  31  Minn.  11,  16  N.  W.  413,  47  Am.  Rep.  771,  and  Higgins  v.  Central  N. 
E.  &  W.  R.  Co.,  155  Mass.  176,  29  N.  E.  534,  31  Am.  St.  Rep.  544 ;  cf.  Morris 
v.  Chicago,  R.  I.  &  P.  R.  Co.,  65  Iowa,  727,  23  N.  W.  143,  54  Am.  Rep.  39.  The 
principle  is  well  stated  in  this  last  case  as  follows :  "In  cases  of  other  than 
penal  actions,  the  foreign  law,  if  not  contrary  to  our  public  policy,  or  to  abstract 
justice  or  public  morals,  or  calculated  to  injure  the  state  or  its  citizens, 
[will]  be  recognized  and  enforced  here,  If  we  have  jurisdiction  of  all  neces- 
sary parties,  and  if  we  can  see  that,  consistently  with  our  own  forms  of 
procedure  and  law  of  trials,  we  can  do  substantial  justice  between  the  par- 
ties." It  is  to  be  hoped  that  this  liberal  and  salutary  doctrine  will  be  the 
one  that  will  finally  prevail. 

The  right  of  action  In  these  cases  stands  upon  the  statute  of  the  state 
where  the  Injury  occurred,  and  not  upon  that  of  the  state  where  the  redress 
is  sought  Hamilton  v.  Hannibal  &  St.  J.  R.  Co.,  39  Kan.  56,  18  Pac.  57; 
Burns  v.  Grand  Rapids  &  I.  R.  Co.,  113  Ind.  169,  15  N.  E.  230 ;  Debevoise  v. 
New  York,  L.  E.  &  W.  R.  Co.,  98  N.  Y.  377,  50  Am.  Rep.  683.  Hence  if  there 
is  no  cause  of  action  by  the  lex  loci  delicti,  there  is  none  by  the  lex  fori. 
Id.;  Kahl  v.  Memphis  &  C.  R.  Co.,  95  Ala.  337,  10  South.  661.  So  the  lex 
loci  delicti  controls,  in  general,  as  to  who  may  sue.  Boulden  v.  Pennsylvania 
R.  Co.,  205  Pa.  264,  54  Atl.  906;  Fabel  v.  Cleveland,  C.,  C.  &  St  L.  R.  Co., 
30  Ind.  App.  268,  65  N.  E.  929 ;  Wooden  v.  Western  N.  Y.  &  P.  R.  Co.,  126  N. 
Y.  10,  26  N.  E.  1050,  13  L.  R.  A.  458,  22  Am.  St  Rep.  803 ;  Thorpe  v.  Union 
Pac.  Coal  Co.,  24  Utah,  475,  68  Pac.  145 ;  Gates  v.  Union  Pac.  Ry.  Co.,  104  Mo. 
514,  16  S.  W.  487,  24  Am.  St  Rep.  348 ;  cf.  Dennick  v.  Railroad  Co.,  103  U.  S, 
11,  26  L.  Ed.  439.) 


[END  OF  CASES  OR  TOUTS.] 


IXDEX. 


ABANDONMENT. 

Of  civil  action  by  the  plaintiff,  by  neglect  to  proceed  with  It,  Is  a  final  ter- 
mination thereof,  on  which  the  defendant  may  maintain  an  action  for  mali- 
cious prosecution. — Cardival  v.  Smith,  277. 

ABATEMENT  AND  REVIVAL  OF  ACTIONS. 

By  the  common  law,  actions  for  injuries  to  the  person  abate  by  death,  and 
cannot  be  revived  or  maintained  by  the  executor  or  the  heir. — Mobile  Life 
Ins.  Co.  v.  Brame,  626. 

ABATEMENT  OF  NUISANCES. 

Party  causing  overflowage  by  alteration  of  dam  not  entitled  to  notice  to 
abate  before  action  brought. — Curtice  v.  Thompson,  459. 

Entry  on  land  of  another  to  abate  u  nuisance  thereon,  without  previous 
request  or  notice  to  the  occupant  to  remove  it,  not  justifiable  in  the  case 
of  a  nuisance  merely  continued  by  such  occupant  as  alienee  of  the  prem- 
ises, where  he  was  not  himself  the  wrongdoer  by  having  created  the  nui- 
sance or  neglected  to  perform  some  obligation  by  the  breach  of  which  it 
was  created. — Jones  v.  Williams,  476. 

A  private  person  may  not  of  his  own  motion  abate  a  strictly  public  nui- 
sance.—State  v.  White,  478. 

A  private  person  may  abate  a  public  nuisance  causing  special  injury  to 
him,  where  he  can  do  so  without  a  breach  of  the  peace. — State  v.  White,  478. 

Where  a  nuisance  consists  of  improper  use  of  building,  the  remedy  is  to  stop 
that  use,  and  not  to  destroy  the  building  itself. — Brightman  v.  Inhabitants  of 
Bristol,  480. 

Where  a  factory  not  in  itself  unlawful  becomes  a  nuisance  on  account  of  its 
location,  a  mob  has  no  right  to  destroy  it  on  their  own  responsibility. — Bright- 
man v.  Inhabitants  of  Bristol,  481. 

ABSCONDING  DEBTORS. 

Aiding  debtor  to  abscond,  and  purchasing  from  him  property  subject  to 
attachment,  not  a  ground  of  action  by  a  creditor  having  no  lien  or  claim  on 
the  property. — Lamb  v.  Stone,  19. 

ABUSE  OF  PROCESS. 

An   action   for   maliciously    suing   out   an    excessive   attachment   may    be 
brought  before  the  termination  of  the  attachment  suit,  where  the  validity 
CHASE  (2o  ED.)  (685) 


686  INDEX. 

of  the  debt  on  which  the  attachment  issued  is  not  in  dispute. — Zinn  T.  Rice, 

288. 

Action  maintainable  for  malicious  abuse  of  process. — Grainger  v.  Hill,  289. 

That  a  criminal  prosecution  has  not  been  terminated  is  no  defense  to  an 
action  for  abuse  of  process  in  such  prosecution. — White  v.  Apsley  Ruober  Co., 
293. 

An  action  lies  for  abuse  of  process,  where  one  arrested  under  criminal  war- 
rant for  malicious  injury  to  personalty  is  not  released  until  he  abandons  a 
claim  of  right  to  occupy  a  certain  house. — White  v.  Apsley  Rubber  Co.,  293. 

ABUTTING  OWNERS. 

See  "Adjoining  Landowners." 

Entitled  to  injunction  to  compel  railroad  company  to  restore  crossing. — 
Buchholz  v.  New  York,  L.  E.  &  W.  R.  Co.,  68. 

A  village  may  recover  from  an  abutting  owner  the  amount  which  it  is  com- 
pelled to  pay  a  person  injured  by  the  defective  condition  of  a  sidewalk  caused 
by  him. — Trustees  of  Village  of  Canandaigua  v.  Foster,  176. 

ACCIDENT. 

No  liability  in  tort  for  purely  accidental  injuries. — Brown  v.  Kendall,  129 ; 
Harvey  v.  Dunlop,  131. 

To  exempt  a  defendant  from  liability  on  the  ground  that  the  injury  to 
plaintiff  was  an  inevitable  accident,  it  must  be  such  an  accident  as  defendant 
could  not  have  avoided  by  the  use  of  the  kind  and  degree  of  care  necessary 
to  the  exigency,  and  in  the  circumstances  in  which  he  was  placed. — Brown  v. 
Kendall,  130. 

The  accidental  loss  or  destruction  of  bills  of  exchange  by  one  lawfully  in 
their  possession  is  not  a  conversion  thereof. — Salt  Springs  Nat.  Bank  v.  Wheel 
er,  5iy. 

ACQUIESCENCE. 

In  nuisance,  less  than  20  years  not  a  bar  to  equitable  relief,  unless  it 
amount  to  laches,  or  create  an  estoppel. — Campbell  v.  Seaman,  423. 

ACTION. 

See  particular  heads,   as  "Action  on  the  Case";    "Adjoining  Landowners"; 
"Death,"  etc. 

Violation  of  legal  right  or  legal  duty  necessary  to  sustain  action  of  tort. 
— Guest  v.  Reynolds,  4 ;  Miller  v.  Woodhead,  7  ;  Gramlich  v.  Wurst,  9 ;  Rich 
v.  New  York  Cent.  &  H.  R.  R.  Co.,  146. 

Violation  of  merely  moral  right  or  duty  not  ground  of  action.  —Lamb  v. 
Stone,  17. 

That  action  is  without  precedent,  although  a  strong  objection,  is  with- 
out weight  where  adoption  of  new  remedy  is  necessary  to  prevent  a  fail 


INDEX.  687 

ure  of  justice,  or  to  enforce  settled  principles  of  law. — Lamb  v.  Stone,  17; 
Rice  v.  Coolidge,  28. 

Cannot  be  maintained  even  for  tort,  where  damages  are  too  remote,  con- 
tingent, or  indefinite. — Lamb  v.  Stone,  19;  Clark  v.  Chambers,  100;  Vanden- 
burgh  v.  Truax,  85 ;  Lowery  v.  Manhattan  Ry.  Co.,  90 ;  Milwaukee  &  St  P. 
Ry.  Co.  v.  Kellogg,  78 ;  Bowen  v.  Hall,  115. 

Lies  against  one  who  induces  plaintiff  to  marry  a  woman  on  the  false 
representation  that  she  is  virtuous. — Kujek  v.  Goldman,  21. 

Cannot  be  maintained  against  a  witness  for  giving  false  testimony  in  a 
suit  by  which  another  is  injured. — Rice  v.  Coolidge,  26 ;  Mobile  Life  Ins.  Co.  v. 
Brame,  625. 

May  be  maintained  against  one  who  suborns  witnesses  to  swear  falsely  to 
defamatory  statements  concerning  another,  in  a  suit  to  which  neither  of 
them  is  a  party. — Rice  v.  Coolidge,  27. 

May  be  maintained  for  violation  of  legal  rights  created  by  statute. — Willy 
v.  Mulledy,  30. 

May  be  maintained  for  a  breach  of  a  duty  imposed  by  statute  upon 
any  citizen,  by  one  having  a  special  interest  in  the  performance  thereof,  to 
whom  damage  is  caused  by  such  breach. — Willy  v.  Mulledy,  30. 

Lies  under  statute  providing  for  injuries  by  railroad  fire,  though  statute 
does  not  provide  remedy  or  prescribe  form  of  action. — Stearns  v.  Atlantic  & 
St.  L.  R.  Co.,  33. 

Lies  at  common  law  or  upon  statute,  where  a  statute  gives  remedy  in  af- 
firmative, without  negative,  for  matter  actionable  at  common  law. — Almy  v. 
Harris,  35. 

Injuria  sine  damno  gives  a  right  of  action. — Webb  v.  Portland  Manufg  Co., 
37. 

May  be  maintained  for  violation  of  right  to  vote. — Webb  v.  Portland 
Manufg  Co.,  20 ;  Smith  v.  Thackerah,  38. 

Cannot  be  maintained  for  act  not  itself  unlawful,  where  no  damage  is  sus- 
tained.— Roberts  v.  Roberts,  63. 

Where  act  or  omission  complained  of  is  not  a  distinct  wrong,  damages 
must  be  proved  to  sustain  action. — Chicago  W.  D.  Ry.  Co.  v.  Rend,  66. 

May  be  maintained  by  individual  for  public  nuisance  causing  special  injury. 
— Buchholz  v.  New  York,  L.  E.  &  W.  R.  Co.,  68. 

For  libel  concerning  plaintiff's  property  not  maintainable  without  proof  of 
special  damage. — Gott  v.  Pulsifer,  70. 

Lies  against  one  inducing  sale  of  goods  to  another  by  false  representations, 
though  he  has  no  interest  in  such  sale,  and  has  not  colluded  with  any  person 
who  has.  The  gist  of  the  action  is  the  injury  to  plaintiff,  and  not  whether 
defendant  meant  to  be  a  gainer. — Pasley  v.  Freeman,  73. 

Distinction  between  action  of  trespass  and  action  on  the  case  not  material 
on  review  of  judgment  on  the  merits  where  declaration,  in  action  brought  be- 
fore justice  of  the  peace,  is  ambiguous  as  to  form  of  action. — Vandenburgh  v. 
Truax,  87. 

May  be  maintained  for  loss  of  a  marriage  by  plaintiff  in  consequence  of 
words  spoken  of  plaintiff  by  defendant,  although  such  words  are  not  in 
themselves  actionable,  and  although  plaintiff  has  a  remedy  for  breach  of  the 
contract  of  marriage. — Moody  v.  Baker,  109. 


688  INDEX. 

May  be  maintained  against  one  who  entices  away  a  servant  while  under 
contract  of  employment  with  plaintiff  for  a  certain  term  under  a  specified 
penalty,  notwithstanding  plaintiff  has  a  remedy  on  such  contract  against  the 
servant. — Moody  v.  Baker,  111. 

Wherever  a  man  does  an  act  which,  in  law  and  in  fact,  is  a  wrongful  act, 
and  such  an  act  as  may,  as  a  natural  and  probable  consequence  of  it,  produce 
injury  to  another,  and  which,  in  the  particular  case,  does  produce  such  an 
injury,  an  action  on  the  case  will  lie.  If  these  conditions  are  satisfied,  the 
action  does  not  the  less  lie  because  the  natural  and  probable  consequence  of 
the  act  complained  of  is  an  act  done  by  a  third  person ;  or  because  such  act  so 
done  by  the  third  person  is  a  breach  of  duty  or  contract  by  him,  or  an  act 
illegal  on  his  part,  or  an  act  otherwise  imposing  an  actionable  liability  on 
him. — Bowen  v.  Hall,  115. 

May  be  maintained  for  damages  for  a  trespass  without  wrongful  intent — 
Bessey  v.  Olliot,  118 ;  Guille  v.  Swan,  120 ;  Hobart  v.  Hagget,  491 ;  Dexter  v. 
Cole,  492. 

,  Action  of  trespass  vl  et  armis  lies  if  the  damage  complained  of  is  the  im- 
mediate effect  of  the  act  of  the  defendant;  if  consequential  only,  and  not 
immediate,  case  is  the  proper  remedy. — Brown  v.  Kendall,  129. 

Where  performance  of  right  or  duty  created  by  law  is  assumed  by  contract, 
action  for  breach  may  be  either  ex  contractu  or  ex  delicto. — Baltimore  City 
Pass.  Ry.  Co.  v.  Kemp,  138,  note  11. 

An  action  ex  contractu,  by  the  owner  against  some  of  the  wrongdoers,  is 
an  election  to  treat  the  transaction  as  a  sale,  and  bars  a  subsequent  action 
against  the  other  wrongdoers  for  conversion. — Terry  v.  Munger,  140. 

The  owner  of  goods  wrongfully  taken  may  waive  the  tort  and  sue  on  im- 
plied contract. — Terry  v.  Muuger,  140. 

In  cases  of  contract,  where  there  is  no  legal  duty  independent  of  the  con- 
tract, one  not  in  privity  with  a  party  to  the  contract  cannot  recover  against 
him  in  tort  for  an  injury  involving  a  breach  of  the  contract. — Winterbottorn  v. 
Wright,  155. 

Where,  in  cases  of  contract,  the  law  imposes  a  duty  towards  third  persons 
who  are  not  parties  to  the  contract,  such  persons  may  recover  in  an  action  of 
tort. — Thomas  v.  Winchester,  157. 

In  actions  of  tort,  plaintiff  may  sue  any  one,  all,  or  such  number  of  the 
wrongdoers  as  he  may  choose. — Kirby  v.  President,  etc.,  of  Delaware  &  H. 
Canal  Co.,  170. 

Failure  of  plaintiff  to  have  writ  returned,  or  to  appear  at  the  court  to 
which  it  is  returnable,  a  final  determination  of  the  action.—  Oardival  v. 
Smith,  275. 

May  be  maintained  for  malicious  prosecution  of  a  civil  proceeding;  at 
least  if  there  has  been  deprivation  of  liberty,  or  taking  of  property. — Cardival 
v.  Smith,  275. 

May  be  maintained  for  an  arrest  which  is  a  malicious  abuse  of  process. — 
Grainger  v.  Hill,  289. 

May  be  maintained  for  a  combination  or  conspiracy,  by  fraudulent  and  ma- 
licious acts,  to  drive  a  trader  out  of  business,  resulting  in  damages. — Van 
Horn  v.  Van  Horn,  295. 

It  seems  that  one  who  procures  another  to  break  a  contract  by  the  latter 
with  a  third  party  is  responsible  for  the  breach  only  where  malice  to  such 


INDEX.  689 

third  person  is  shown,  giving  a  distinct  cause  of  action  for  the  malice  which 
caused  the  breach  of  contract  resulting  In  damages  to  him. — Van  Horn  v. 
Van  Horn,  295. 

Cannot  be  maintained  for  acts  of  mere  competition  in  business,  carried  on 
for  the  purpose  of  gain,  and  without  actual  malice,  even  though  intended 
to  drive  a  rival  in  trade  away  from  his  place  of  business,  and  though  that 
Intention  be  actually  carried  into  effect. — Van  Horn  v.  Van  Horn,  296. 

May  be  maintained  for  a  combination  to  injure  a  man  in  his  trade  by  in- 
ducing his  customers  or  servants  to  break  their  contracts  with  him,  If  It  re- 
sults in  damage. — Quinn  v.  Leathern,  297. 

A  single  trespass  may  be  committed  on  several  closes,  and  one  action 
maintained  therefor  as  one  trespass. — Halligan  v.  Chicago  &  R.  I.  R.  Co.,  398. 

May  be  brought  for  overflowage  caused  by  alteration  of  dam,  without  pre- 
vious notice  to  abate. — Curtice  v.  Thompson,  459. 

Cannot  be  maintained  for  a  nuisance  causing  injury  to  plaintiff,  unless  he 
shows  some  special  damage  to  his  person  or  property  differing  in  kind  from 
that  sustained  by  other  persons  subjected  to  inconvenience  and  injury  from 
the  same  cause. — Wesson  v.  Washburn  Iron  Co.,  464. 

No  right  of  action  for  negligence  unless  there  is  a  violation  of  legal  duty. 
— Larmore  v.  Crown  Point  Iron  Co.,  556. 

Could  not  be  maintained,  at  common  law,  for  damages  for  an  act  causing 
the  death  of  a  human  being,  though  clearly  involving  pecuniary  loss. — Mobile 
Life  Ins.  Co.  v.  Brame,  624. 

Cannot  be  maintained  by  insurance  company  against  one  who  willfully 
fired  a  building  which  it  had  insured,  whereby  it  was  compelled  to  pay  the 
loss. — Mobile  Life  Ins.  Co.  v.  Brame,  625. 

Cannot  be  maintained  by  one  party  to  a  contract  against  a  third  person 
for  persuading  the  other  party  to  the  contract  not  to  perform  it. — Mobile 
Life  Ins.  Co.  v.  Brame,  625. 

Cannot  be  maintained  by  contractor  for  support  of  town  paupers  against 
a  person  inflicting  personal  injury  upon  such  a  pauper,  on  the  ground  that 
thereby  the  contractor  was  subjected  to  extra  expenditure. — Mobile  Life  Ins. 
Co.  v.  Brame,  625. 

May  be  maintained  for  fraud,  coupled  with  damage. — Hickey  v.  Morrell,  653. 


ACTION  ON  THE  CASE. 

Does  not  lie  for  disturbance  of  a  ferry  right  under  the  statute  regulating 
ferries. — Alrny  v.  Harris,  35. 

Where  an  act  is  in  law  and  fact  wrongful,  and  is  such  as  may,  as  a  natural 
and  probable  consequence  of  it,  produce  injury  to  another,  and  which  in  the 
particular  case  does  produce  such  an  injury,  an  action  on  the  case  will  lie. — 
Bowen  v.  Hall,  115. 

ACT  OF  GOD. 

Damage  to  cargo  by  water  escaping  through  pipe  of  steam  boiler  In  conse- 
quence of  pipe  having  been  cracked  by  frost  is  due  to  negligence  of  captain  and 
not  act  of  God.— Siordet  v.  Hall,  83. 
CIIASE  (2o  ED.) — 44 


690  INDEX. 


ADJOINING  LANDOWNERS. 

Not  liable  for  obstruction  of  access  of  light  or  air  to  adjacent  land,  unless 
adverse  right  thereto  has  been  acquired. — Guest  v.  Reynolds,  4. 

Owner  of  land  may  improve  it  in  his  own  way,  if  he  violates  no  duty  to 
any  adjacent  owner,  or  to  the  public. — Gramlich  v.  Wurst,  12. 

One  making  excavations  in  land  is  liable  for  injury  caused  thereby  to 
land  of  adjoining  tract  in  its  natural  condition,  even  though  there  was  no 
negligence  in  making  such  excavations. — Gilmore  v.  Driscoll,  45. 

One  making  excavations  in  land  is  not  liable,  in  the  absence  of  negligence, 
for  injury  to  improvements  on  adjoining  tract,  unless  adjoining  owner  has 
acquired  a  right  to  support  thereof  by  grant  or  prescription. — Gilmore  v. 
Driscoll,  48. 

A  landowner  has  the  absolute  right  to  have  his  land  remain  in  its  natural 
condition  unaffected  by  any  act  of  his  neighbor. — Gilmore  v.  Driscoll,  49. 

That  land  in  which  one  makes  excavations  does  not  belong  to  him  does  not 
affect  his  liability  for  injury  to  adjoining  lot. — Gilmore  v.  Driscoll,  49. 

Where  lateral  support  of  soil  is  removed,  owner  is  entitled  to  recover  for 
loss  of  and  injury  to  soil,  not  for  cost  of  restoring  it  or  difference  in  market 
price. — Gilmore  v.  Driscoll,  50. 

Railroad  company,  doing  blasting  on  its  own  land  and  exercising  due  care, 
is  not  liable  for  injury  to  adjoining  property  arising  from  incidental  jarring. 
—Booth  v.  Rome,  W.  &  O.  T.  R.  Co.,  56. 

Not  liable  for  opening  wells  on  his  own  land  and  drawing  water  there- 
from, although  supply  of  water  to  wells  on  another's  land  is  diminished 
thereby. — Ocean  Grove  Camp  Meeting  Ass'n  v.  Commissioners  of  Asbury  Park, 
59. 

Cause  of  action  for  injuries  to  property  by  mining  on  adjacent  land  ac- 
crues at  time  of  actual  injury,  and  not  at  time  of  excavation  on  adjoining  land. 
— Bonomi  v.  Backhouse,  66. 

For  appropriation  of  soil  of  a  public  highway  trespass  lies  by  the  owner  of 
land  through  which  highway  passes. — Gidney  v.  Earl,  390. 

One  of  two  adjoining  proprietors  upon  whose  land  cattle  stray  from  the 
highway,  from  which  they  pass,  through  a  defect  in  that  portion  of  the 
division  fence  which  he  was  by  law  bound  to  keep  in  repair,  upon  the  land 
of  the  other,  is  not  liable  to  the  latter  in  trespass  therefor,  although  he 
would  be  liable  for  such  trespass  by  cattle  rightfully  on  his  land. — Lawrence 
v.  Combs,  415. 

Owner  of  land  has  right  of  action  for  pollution  of  percolating  waters  by  ad- 
joining owner. — Ballard  v.  Tomlinson,  443. 

An  owner  of  land,  putting  filth  or  poisonous  matter  thereon,  is  liable  for 
permitting  it  to  escape,  so  as  to  poison  water  which  neighbor  has  right  to  use. 
—Ballard  v.  Tomlinson,  443. 

ADVERSE  POSSESSION. 

See  "Prescription." 


INDFOC.  691 


ADVERSE  RIGHTS. 

To  easement  of  light  and  air  not  acquired  by  prescription. — Guest  v.  Reyn- 
olds, 4 ;  Miller  v.  Woodhead,  7. 

AFFRAY. 

Right  of  recovery  for  injuries  received  in  affray  not  affected  by  consent 
of  combatants  to  fight  together. — Engelhardt  v.  State,  193 ;  Barholt  v.  Wright, 
194. 

Officer  may  arrest,  without  a  warrant,  persons  engaged  in  affray,  while 
it  is  going  on,  but  not  after  it  is  over,  unless  there  is  danger  of  its  immediate 
renewal. — Quinn  v.  Heisel,  255. 

A  private  person  may  arrest,  without  a  warrant,  persons  engaged  in  af- 
fray, while  it  is  going  on,  but  not  after  it  is  ended. — Phillips  v.  Trull,  259. 


AGENCY. 

See  "Principal  and  Agent." 

AGREEMENT. 

See  "Contracts." 

ANCIENT  LIGHTS. 

English  doctrine  not  applicable  in  Illinois. — Guest  v.  Reynolds,  4;   Miller  T. 

Woodhead,  7. 

ANIMALS. 

In  an  action  for  damages  for  loss  of  horse  by  reason  of  being  bitten  by 
defendant's  dog  while  the  horse  was  harnessed  to  a  wagon  and  being  led  be- 
hind another  wagon,  the  fact  of  so  leading  the  horse  is  not  negligence. — 
Boulester  v.  Parsons,  81. 

Owner  of  domestic  animals  liable  for  injuries  committed  by  them  while 
trespassing  on  the  close  of  another,  irrespective  of  his  knowledge  of  their 
vicious  propensities;  but  not  liable  for  injuries  by  them  unless  they  were 
trespassing,  or  he  had  knowledge  of  their  vicious  propensities. — Van  Leuven 
v.  Lyke,  395. 

The  owner  of  an  ox  which,  while  being  driven  along  the  highway,  escapes 
and  enters  premises  of  another  adjoining  the  highway,  is  not  liable  for 
the  damages  thereby  done,  unless  there  was  negligence  on  his  part. — Tillett 
v.  Ward,  413. 

One  of  two  adjoining  proprietors  upon  whose  land  cattle  stray  from  the 
highway,  from  which  they  pass,  through  a  defect  in  that  portion  of  the  divi- 
sion fence  which  he  was  by  law  bound  to  keep  in  repair,  upon  the  land  of  the 
other,  is  not  liable  to  the  latter  in  trespass  therefor ;  although  he  would  be 
liable  for  such  trespass  by  cattle  rightfully  on  his  land. — Lawrence  v.  Combs, 
415. 

One  keeping  a  mischievous  or  vicious  animal,  with  knowledge  of  its  pro- 
pensities, is  bound  to  keep  it  secure  at  his  peril ;  he  cannot  excuse  himself 


692  INDEX. 

irom  liability  for  injuries  inflicted  by  it  by  proof  of  due  care. — Muller  v. 
McKesson,  484. 

The  negligence  of  a  servant  in  loosing  his  master's  ferocious  dog  is  no 
defense  to  an  action  for  the  injury  caused  by  the  dog  to  a  fellow  servant, 
as  the  gravamen  of  the  action  is  the  keeping  of  a  ferocious  animal  with 
knowledge  of  its  nature,  and  not  the  negligent  care  of  it. — Muller  v.  McKes- 
son, 4S5. 

A  person  in  the  employ  of  another,  charged  with  specific  duties,  does  not 
while  in  the  performance  of  such  duties,  assume  the  risk  of  injury  from  a 
vicious  animal  kept  by  the  employer,  which  he  is  informed  will  be  kept 
fastened. — Muller  v.  McKesson,  488. 

Owner  of  cattle  is  bound  to  prevent  them  from  escaping  from  his  land  and 
doing  mischief ;  but,  with  regard  to  tame  beasts  having  no  exceptionally 
vicious  disposition  so  far  as  known,  the  owner  is  not  liable  for  the  hurt 
they  may  inflict  upon  the  persons  of  others. — Marshall  v.  Welwood,  562. 

The  negligence  of  the  owner  of  an  animal  in  leaving  it  fettered  in  the  high- 
way does  not  preclude  his  maintaining  an  action  for  the  killing  of  the 
animal  occasioned  by  the  negligent  act  of  the  driver  of  a  wagon  in  running 
into  it,  if  the  driver's  negligence  was  the  proximate  cause  of  the  injury, 
and  if  he  might  have  avoided  it  by  exercise  of  ordinary  care. — Davies  v.  Maun, 
571. 

The  sale  of  animals  which  the  seller  knows,  but  the  purchaser  does  not, 
have  a  contagious  disease,  is  to  be  regarded  as  a  fraud,  if  the  fact  of  the 
disease  is  not  disclosed. — Grigsby  v.  Stapleton,  G46. 

APPORTIONMENT. 

No  apportionment  of  damages  between  joint  tort-feasors. — Keegan  v.  Hay- 
den,  171. 

ARREST. 

Written  complaint  on  oath  that  certain  goods  were  stolen  and  that  com- 
plainant "has  probable  cause  to  suspect  and  does  suspect"  that  a  certain 
person  stole  them,  without  further  proof,  does  not  give  a  justice  jurisdiction 
to  issue  a  warrant  for  the  arrest  of  the  person  charged,  so  as  to  protect 
him  from  liability  for  false  imprisonment. — Blodgett  v.  Race,  227. 

A  judicial  officer  having  general  powers  is  responsible  for  causing  an  arrest 
in  all  cases  over  which  he  has  cognizance,  unless  the  case  is.  by  complaint  or 
other  proceeding,  put  colorably  under  his  jurisdiction. — Grove  v.  Van  Duyn, 
233. 

Where  an  attorney  for  judgment  creditors  issued  a  void  execution  for  arrest 
of  the  judgment  debtor,  the  judgment  creditors  were  liable. — Guilleaunie  v. 
Rowe,  238. 

Complaint  held  insufficient  to  justify  warrant  of  arrest,  so  as  to  protect 
officer. — Elsemore  v.  Longfellow,  240. 

An  officer  making  an  arrest  under  process  issued  by  a  magistrate  is  liable 
for  false  imprisonment,  if  the  process  is  void  on  its  face. — Elsemore  v.  Long- 
fellow, 240. 

Under  a  constitutional  provision  that  no  warrant  to  seize  any  person  shall 
Issue  without  special  designation  of  the  person  to  be  seized,  a  warrant  de- 
scribing the  accused  as  "a  person  whose  name  is  not  known,  but  whose  per- 


INDEX.  693 

son  is  well  known,  of  V.,  of  the  county  of  K.,"  Is  Insufficient  to  protect  an  offi- 
cer making  an  arrest  thereunder. — Hanvood  v.  Siphers,  247. 

By  private'  person  without  warrant  excused  only  where  felony  has  In  fact 
been  committed  and  there  was  reasonable  ground  to  suspect  the  person  ar- 
rested.— Burns  v.  Erben,  250. 

By  officer  without  warrant  justified,  though  no  felony  has  been  actually 
committed,  if  he  has  reasonable  ground  to  suspect  that  it  has  and  acts  in 
good  faith. — Burns  v.  Erben,  250. 

In  action  for  false  imprisonment,  facts  held  not  to  justify  arrest  without 
warrant. — White  v.  McQueen,  254. 

For  breach  of  the  peace,  while  it  continues  justifiable  without  warrant 
— Quinn  v.  Heisel,  257 ;  Phillips  v.  Trull,  259. 

By  officer,  without  a  warrant,  for  a  past  offense,  not  a  felony,  Is  not  justified 
by  information  or  suspicion. — Quinn  v.  Heisel,  257. 

By  officer,  without  warrant,  is  not  justified  by  a  threat  or  other  indi- 
cation of  a  breach  of  the  peace,  unless  the  facts  warrant  a  belief  that 
the  arrest  is  necessary  to  prevent  the  commission  of  the  offense,  without  ref- 
erence to  any  past  similar  offense  of  which  the  person  may  have  been  guilty 
before  the  officer's  arrival. — Quinn  v.  Heisel,  257. 

An  arrest  made  under  lawful  process,  though  wrongfully  obtained,  is  not 
a  ground  of  action  for  false  imprisonment. — Hobbs  v.  Ray,  2G4. 

Action  maintainable  for  arrest  which  is  a  malicious  abuse  of  process. — 
Grainger  v.  Hill,  289. 

Arrest  may  be  made  without  actually  touching  the  person. — Grainger  v. 
Hill,  291. 

Warrant  regular  on  its  face,  sufficient  authority  to  a  constable  to  make  the 
arrest  comininded  therein,  although  he  has  knowledge  of  facts  which  render 
the  warrant  void  for  want  of  jurisdiction. — People  v.  Warren,  547. 

ASSAULT  AND  BATTERY. 

Action  maintainable  for  assault  and  battery  by  explosion  of  lighted  squib 
first  throv,"i  by  defendant,  although  plaintiff  would  not  have  been  injured 
without  intervention  of  others. — Clark  v.  Chambers,  102;  Vandenburgh  v. 
Truax,  85. 

Action  not  maintainable  for  injury  from  a  blow  which  was  the  result  of 
pure  accident,  or  was  involuntary  and  unavoidable. — Brown  v.  Kendall,  130. 

A  party  advising  or  aiding  in  committing  an  assault  is  liable,  though  not 
personally  present  at  the  time  of  its  commission. — Bell  v.  Miller,  181. 

Pointing  an  unloaded  gun  at  one  who  supposes  it  to  be  loaded,  although 
within  the  distance  it  would  carry  if  loaded,  is  not,  without  more,  an  assault 
punishable  criminally,  although  it  may  sustain  a  civil  action  for  damages. — 
Chapman  v.  State,  185. 

Riding  after  a  person,  so  as  to  compel  him  to  run  to 'shelter  to  avoid  being 
beaten,  is,  in  law,  an  assault. — Mortin  v.  Shoppee,  187. 

Advancing  in  a  threatening  attitude  and  with  intent  to  strike  another,  so 
that  the  blow  would  almost  immediately  reach  him,  is,  in  law,  an  assault 
by  the  person  advancing  with  such  intent,  although  he  is  stopped  before  b* 
is  near  enough  to  the  other  to  strike  him. — Stephens  v.  Myers,  188. 


694  INDEX. 

To  constitute  a  criminal  assault  there  must  be  a  present  purpose  to  do 
injury. — State  v.  Crow,  190. 

Words  accompanying  menacing  acts  and  indicating  that  there  is  no  intent 
to  do  actual  violence  may  be  considered  on  the  question  whether  such  acts 
constitute  an  assault. — State  v.  Crow,  190. 

To  touch  another  in  anger,  though  in  the  slightest  degree,  or  under  pretense 
of  passing,  is,  in  law,  a  battery. — Cole  v.  Turner,  191. 

Aiming  and  firing  a  loaded  pistol  in  the  direction  of  another  constitutes 
a  criminal  assault. — Engelhardt  v.  State,  192. 

Raising  a  stick,  within  striking  distance  of  another,  as  if  to  strike  him, 
although  that  is  prevented  by  the  other  wrenching  the  stick  from  the 
assailant,  constitutes  a  criminal  assault. — Engelhardt  v.  State,  192. 

Laying  hold  of  another's  person  in  a  rude  and  hostile  manner  is  a  battery. 
— Engelhardt  v.  State,  192. 

Where  two  combatants  fight  together  willingly,  neither  in  self-defense, 
each  is  guilty  of  an  assault  and  battery  on  the  other. — Engelhardt  v.  State, 
193. 

No  defense  to  action  for  assault  and  battery  that  the  acts  complained  of 
were  committed  in  a  fight  engaged  in  by  mutual  consent,  although  such  con- 
sent may  be  shown  in  mitigation  of  damages. — Barholt  v.  Wright,  194. 

Assault  in  defense  of  property  justifiable,  unless  unreasonable  force  is 
used. — Scribner  v.  Beach,  197;  Commonwealth  v.  Donahue,  202;  Newkirk 
v.  Sabler,  393. 

Words  alone  do  not  justify  an  assault. — Daniel  v.  Giles,  204. 

In  action  of  damages  for  assault,  evidence  that  three  hours  before  the 
alleged  assault  plaintiff  insulted  defendant's  wife  is  inadmissible,  as  not  be- 
ing provocation  at  time  of  assault. — Dupee  v.  Lentine,  206. 

Assault  by  servant  of  carrier  in  expelling  passenger  for  wanton  violation 
of  reasonable  regulation  justifiable,  unless  more  force  is  used  than  necessary 
for  the  purpose,  or  a  dangerous  or  inconvenient  place  is  selected  for  such 
expulsion. — Illinois  Cent  R.  Co.  v.  Whittemore,  208. 

Corporal  punishment  of  pupil  by  teacher  to  enforce  compliance  with  proper 
rules  for  good  conduct  and  order  of  school  justifiable,  if  inflicted  with  sound 
discretion  and  judgment,  and  adapted  to  the  offender  as  well  as  the  offense. 
— Sheehan  v.  Sturges,  211. 

Assault  by  officer  in  overcoming  unlawful  resistance  to  service  of  process 
justifiable,  unless  excess  of  force  is  used  by  him. — Hager  v.  Danforth,  214. 

A  private  person,  who  uses  force  in  abating  a  public  nuisance,  causing 
special  injury,  is  liable  for  assault — State  v.  White,  479. 

ATTACHMENT. 

Fraudulent  purchase  of  debtor's  goods  to  prevent  attachment  not  ground 
of  action  by  creditor  for  damages  for  fraud. — Lamb  v.  Stone,  17. 

Purchaser  from  attachment  debtor,  of  goods  attached  in  his  hands,  entitled 
to  equitable  set-off  for  advances  made  to  or  debts  paid  for  principal  debtor 
in  good  faith. — Lamb  v.  Stone,  18. 

An  action  for  maliciously  suing  out  an  excessive  attachment  may  be  brought 
before  the  termination  of  the  attachment  suit,  where  the  validity  of  the  debt 
on  which  the  attachment  issued  is  not  in  dispute. — Zinn  v.  Rice,  288. 


INDEX.  695 


ATTORNEYS. 

Where  an  attorney  for  Judgment  creditors  issued  a  void  execution  for  ar- 
rest of  the  judgment  debtor,  the  judgment  creditors  were  liable. — Guilleaume 
v.  Rowe,  238. 

An  attorney  causing  issue  of  void  or  irregular  process  is  liable  for  loss 
or  injury  thereby  occasioned  to  parties  against  whom  it  is  enforced. — Fischer 
v.  Langbein,  242. 

One  who,  in  instituting  an  alleged  malicious  prosecution,  submitted  all 
the  facts  of  the  case  which  he  knew  were  capable  of  proof  fairly  to  his 
counsel,  and  -acted  bona  fide  on  the  advice  given,  is  not  liable  to  an  action 
therefor,  even  though  the  facts  did  not  warrant  the  advice  and  the  prosecu- 
tion.— Walter  v.  Sample,  273. 

Court  of  general  criminal  Jurisdiction  has  power  to  strike  from  the 
roll  of  attorneys  practicing  in  the  court  the  name  of  an  attorney  guilty  of  mis- 
conduct which  is  ground  for  such  an  order. — Bradley  v.  Fisher,  532. 

Misconduct  by  an  attorney  in  threatening  a  judge  presiding  at  a  trial,  as  he 
was  descending  from  the  bench,  with  personal  chastisement  for  his  alleged 
conduct  during  the  trial,  is  ground  for  striking  the  name  of  such  attorney 
from  the  roll  of  attorneys  practicing  in  the  court. — Bradley  v.  Fisher,  534. 

Where  a  court  has  power  to  make  an  order  striking  the  name  of  an 
attorney  from  the  roll  of  attorneys  practicing  in  the  court,  error  in  not  cit- 
ing the  attorney,  before  making  such  an  order,  to  show  cause  why  it  should 
not  be  made,  however  it  may  affect  the  validity  of  the  act,  does  not  make 
it  any  less  a  judicial  act,  nor  does  it  render  the  judge  making  the  order 
liable  in  damages  to  the  attorney,  as  though  the  court  had  proceeded  with- 
out jurisdiction. — Bradley  v.  Fisher,  534. 

BAILMENT. 

See   "Landlord    and   Tenant";    "Loans";    "Warehousemen." 

One  who  hires  a  horse  to  drive  to  a  particular  place,  and  drives  beyond  the 
place  or  in  another  direction,  is  liable  for  a  conversion. — Freeman  v.  Boland, 
508. 

BALLOON. 

Action  maintainable  for  Injuries  to  property  from  the  descent  thereon  of 
a  balloon  in  which  defendant  had  ascended,  including  damage  done  by  third 
persons  coming  to  defendant's  assistance. — Guille  v.  Swan,  119. 

BATTERY. 

See  "Assault  and  Battery." 

BELLS. 

Ringing  the  bell  of  a  church,  built  upon  a  public  street  In  a  thickly  settled 
part  of  a  town,  in  such  manner  as  to  materially  affect  the  health  or  com- 
foii  of  all  in  the  vicinity,  whether  residing  or  passing  there,  constitutes  a 
public  nuisance. — Rogers  v.  Elliott,  446. 


696  INDEX 

But  one  who,  by  reason  of  a  sunstroke,  is  peculiarly  susceptible  to  the  noise 
caused  by  the  ringing  of  a  church  bell,  situated  directly  opposite  his  house 
in  a  thickly  populated  district,  cannot,  in  the  absence  of  evidence  of  express 
malice,  or  that  the  bell  was  objectionable  to  persons  of  ordinary  health  and 
strength,  maintain  an  action  against  the  custodian  of  such  church  for  suf- 
ferings caused  by  the  ringing  of  such  bell. — Rogers  v.  Elliott,  445. 

Use  of  bells  by  employers  for  purpose  of  giving  notice  to  their  workmen, 
although  such  as  to  cause  injury  to  individuals  which  a  court  of  equity  would 
restrain,  may  be  authorized  by  Legislature,  subject  to  regulation  by  munic- 
ipal authorities. — Sawyer  v.  Davis,  4G9. 

BILLS  AND  NOTES. 

Sec  "Negotiable  Instruments," 

BLASTING. 

Railroad  company,  doing  blasting  on  its  own  land  and  exercising  due  care, 
is  not  liable  for  injury  to  adjoining  property  arising  from  incidental  jarring. 
— Booth  v.  Rome,  W.  &  O.  T.  R.  Co.,  56. 

Blasting  rocks  with  gunpowder  so  that  the  fragments  are  liable  to  injure 
adjoining  dwelling  houses,  or  persons  living  or  traveling  there,  constitutes 
a  nuisance. — Heeg  v.  Licht,  451. 

BREACH  OF  THE  PEACE. 

Self -defense  an  excuse. — Scribner  v.  Beach,  197. 

Arrest  for  breach  of  the  peace,  while  it  continues,  justifiable  without  war- 
rant—Phillips v.  Trull,  259. 

A  public  nuisance,  causing  special  Injury,  will  not  justify  a  breach  of 
the  peace  in  the  abatement  thereof  by  a  private  person. — State  v.  White,  479. 

BRICK  KILNS. 

Burning  brick  in  a  kiln,  which  produces  noxious  gases,  Injuring  another's 
property,  is  a  nuisance,  though  brickburuing  is  a  useful  and  necessary  in- 
dustry.— Campbell  v.  Seaman,  419. 

Where  the  injury  to  shrubbery  on  plaintiff's  premises  is  caused  by  the 
burning  of  anthracite  coal  in  a  brick  kiln  on  adjoining  premises  by  defendant, 
a  prescriptive  right  to  continue  the  nuisance  must  be  based  upon  20  years' 
actual  use  of  such  coal,  and  not  20  years'  use  of  the  kiln. — Campbell  v.  Sea- 
man, 424. 

BRIDGES. 

Where  a  child  fell  through  a  bridge  into  a  canal,  in  consequence  of  the  negli- 
gent condition  of  the  bridge,  and  without  contributory  negligence  of  the 
parents  of  the  child,  and  the  father,  in  an  effort  to  rescue  the  child,  plunged 


INDEX.  61)  7 

into  the  canal,  and  both  were  drowned,  the  death  of  both  Is  attributable  to 
negligence  in  maintaining  the  bridge. — Gibney  v.  State,  93. 

BROKERS. 

Broker  having  right  to  sell  and  deliver  property  not  liable  for  conversion 
In  selling  at  a  price  less  than  that  fixed  by  his  instructions. — Laverty  v. 
Snethen,  498. 

CARRIERS. 

Common  carrier  of  passengers  owes  to  a  passenger  a  duty  to  be  careful, 
Irrespective  of  contract. — Baltimore  City  Pass.  Ry.  Co.  v.  Kemp,  136. 

Statute  forbidding  railroad  companies  to  expel  passengers  from  trains  for 
nonpayment  of  fare,  at  any  place  other  than  a  regular  station,  does  not 
apply  to  a  refusal  by  a  passenger  to  surrender  his  ticket,  as  required  by  a 
rule  of  the  company. — Illinois  Cent  R.  Co.  v.  Whittemore,  207. 

Railroad  company  may  expel  passenger  from  train  for  wanton  refusal  to 
comply  with  rule  requiring  surrender  of  tickets  on  the  train,  using  no 
more  force  than  necessary  for  the  purpose,  and  not  selecting  a  dangerous  or  in- 
convenient place. — Illinois  Cent  R.  Co.  v.  Whittemore,  208;  Lynch  v.  Metro- 
politan El.  Ry.  Co.,  224. 

Rule  requiring  railway  passengers  to  surrender  their  tickets  on  the  trains, 
a  reasonable  regulation. — Illinois  Cent  R.  Co.  v.  Whittemore,  208;  Lynch  v. 
Metropolitan  El.  Ry.  Co.,  223. 

Regulation  by  a  railroad  company  that  a  passenger,  who  fails,  before  leav- 
ing its  trains  or  premises,  to  produce  a  ticket  or  pay  his  tare,  shall  be 
detained  until  he  does  so,  is  illegal. — Lynch  v.  Metropolitan  El.  Ry.  Co.,  223. 

Carrier  has  a  lien  for  fare  on  baggage  of  passenger,  but  not  on  his  person. 
— Lynch  v.  Metropolitan  El.  Ry.  Co.,  224. 

A  carrier  is  not  liable  in  conversion  for  mere  nonfeasance,  but  may  be  liable 
for  negligence. — Wamsley  v.  Atlas  S.  S.  Co.,  500. 

Where  goods  intrusted  to  a  common  carrier  for  transportation  are  delivered 
by  him  through  mistake  or  under  a  forged  order  to  a  wrong  person,  such 
misdelivery  constitutes  a  conversion. — Wamsley  v.  Atlas  S.  S.  Co.,  501. 

Where  property  is  intrusted  to  a  common  carrier  for  transportation,  the  loss 
thereof  through  theft  or  negligence  is  not  a  conversion. — Wamsley  v.  Atlas 
S.  S.  Co.,  502. 

Refusal  to  deliver  goods  to  owner,  after  attachment  as  property  of  another, 
did  not  constitute  a  conversion,  where  the  company  disclaimed  dominion 
over  them. — Hett  v.  Boston  &  M.  R.  R.,  521. 

Where  a  station  agent  had  doubts  as  to  whether  a  charge  for  detention 
of  the  car  containing  plaintiff's  goods  was  lawful,  and  as  to  whether  the  rail- 
road company  would  insist  on  payment,  his  refusal  to  deliver  the  goods  before 
obtaining  instructions  did  not  constitute  a  conversion. — Hett  v.  Boston  &  M. 
R.  R.,  522. 

One  hiring  a  public  hack,  but  exercising  no  control  over  the  driver,  is  not 
responsible  for  the  driver's  negligence,  so  as  to  prevent  him  from  recovering 
from  a  railroad  company  for  injuries  from  a  collision  of  the  train  with  the 
hack,  due  to  the  negligence  of  both  the  managers  of  the  train  and  the  driver. — 
Little  v.  Hackett  589. 


698  INDEX. 


CELLAR  DOORS. 

Action  maintainable  for  personal  injuries  caused  by  fall  of  flap  of  cellar 
door,  left  raised  and  unfastened  by  negligence  on  part  of  defendant,  al- 
though its  fall  was  caused  by  intervening  act  of  third  person. — Clark  v.  Cham- 
bers, 104. 

CERTIORARI. 

Writ  lies,  at  common  law,  only  to  officers  exercising  Judicial  powers,  and 
to  remove  proceedings  of  a  judicial  character. — Weaver  v.  Devendorf,  537. 

CHILD. 

See  "Infancy." 

CIPHER. 

That  a  libelous  statement  by  a  mercantile  agency  to  Its  subscribers  was  In 
cipher,  understood  by  the  subscribers  only,  Is  not  a  defense  to  an  action  for 
libel. — Sunderlin  y.  Bradstreet,  368. 

CIVIL  LAW. 

Rule  as  to  right  of  drainage  of  surface  waters,  as  between  owners  of  ad- 
jacent lands,  of  different  elevations,  governed  by  the  law  of  nature;  but  Is 
not  adopted  in  all  the  states. — Barkley  v.  Wilcox,  431. 

COLLOQUIUM. 

To  show  that  words  were  meant  to  impute  larceny,  extrinsic  circumstances 
must  be  shown  by  colloquium. — Stitzell  v.  Reynolds,  380. 

COMMON  LAW. 

Doctrine  as  to  easements  of  light  and  air  not  adopted  In  Illinois. — Guest 
v.  Reynolds,  4;  Miller  v.  Woodhead,  7. 

Legal  rights  may  be  established  by  common  law,  in  cases  of  novel  Impres- 
sion.— Rice  v.  Coolidge,  28. 

Action  lies  at  common  law,  where  statute  gives  affirmative  remedy,  without 
negative  for  matter  actionable  at  common  law. — Almy  v.  Harris,  35. 

Rule  that  words  imputing  unchastity  to  a  woman  are  not  actionable  unless 
special  damage  be  shown  has  been  changed  by  statute  in  many  of  the  United 
States. — Roberts  v.  Roberts,  64,  note. 

CONCEALMENT. 

On  a  sale  of  an  article  for  a  particular  purpose,  the  suppression  by  the  ven- 
dor of  a  latent  defect  which  makes  the  article  unfit  for  such  purpose  is  a 
deceit. — Grigsby  v.  Staploton,  646. 


INDEX.  699 

One  who  sells  cattle,  which  he  knows  have  a  contagious  disease,  not  easily 
detected  except  by  those  acquainted  with  it,  for  a  sound  price,  to  a  pur- 
chaser having  no  knowledge  of  the  fact,  if  he  does  not  disclose  the  fact 
to  the  purchaser,  Is  guilty  of  fraudulent  concealment  of  a  latent  defect,  which 
will  defeat  an  action  for  the  price ;  under  such  circumstances,  the  rule 
caveat  emptor  does  not  apply. — Grigsby  v.  Stapleton,  647. 

CONDITIONS. 

Lending  horse  behind  wagon  is  condition  and  not  cause  of  injury  to  horse 
by  being  bitten  by  dog. — Boulester  v.  Parsons,  81. 

CONFIDENTIAL  COMMUNICATIONS. 

Defamatory  words  are  not  privileged  because  uttered  in  strictest  con- 
fidence by  one  friend  to  another;  nor  because  they  are  uttered  after  the  most 
urgent  solicitation ;  nor  because  the  interview  in  which  they  are  uttered 
is  obtained  at  the  instance  of  the  person  slandered. — Byam  v.  Collins,  365. 

That  a  libelous  statement  by  a  mercantile  agency  to  its  subscribers  was  in 
cipher,  understood  by  the  subscribers  only,  is  not  a  defense  to  an  action 
for  libel. — Sunderlin  v.  Bradstreet,  368. 

CONFLICT  OF  LAWS. 

To  authorize  an  action  for  a  wrong  committed  abroad,  the  wrong  must  be 
such  as  would  have  been  actionable  in  the  country  where  the  action  is 
brought,  and  not  justifiable  by  the  law  of  the  place  where  committed. — Carr 
v.  Fracis  Times  &  Co.,  675. 

An  action  for  damages  for  wrongful  death,  though  statutory,  Is  transitory, 
and  an  action  therefor  may  be  maintained  in  a  state  other  than  that  in 
which  the  injury  occurred,  where  the  statute  of  the  state  in  which  the  in- 
jury occurred  Is  not  inconsistent  with  the  laws  or  policy  of  the  state 
where  such  action  is  brought. — Nelson's  Adm'r  y.  Chesapeake  &  O.  Ry.  Co., 
681. 

An  action  for  trespass  on  land  can  be  brought  only  within  the  state  in  which 
the  land  lies. — Ellemvood  v.  Marietta  Chair  Co.,  679. 

Where  a  dog  owned  in  one  state  strays  into  another,  and  there  injures 
a  person,  no  action  lies  against  the  owner  in  the  state  of  his  residence,  where 
such  action  would  not  lie  in  the  state  where  the  injury  was  committed. 
— Le  Forest  v.  Tolman,  677. 

Where  British  goods,  on  board  a  British  ship  within  the  territorial  waters 
of  a  foreign  government,  were  seized  by  an  officer  of  the  British  navy  under 
authority  of  such  foreign  government,  the  seizure  was  lawful,  and  no  action 
could  be  maintained  therefor  in  England. — Carr  v.  Fracis  Times  &  Co.,  676. 

CONSENT. 

Not  a  Justification  for  an  assault,  but  merely  ground  of  mitigation  of  dam- 
ages.—Barholt  v.  Wright,  194. 


700  INDEX. 


CONSORTIUM. 

Loss  of  consortium  vlcinorum  not  such  special  damage  as  will  sustain  action 
for  slander  in  speaking  words  not  actionable  in  themselves. — Roberts  v. 
Roberts,  63. 

An  action  may  be  maintained  by  a  husband  for  the  loss  of  consortium  with 
his  wife  which  is  implied  from  criminal  conversation  of  the  defendant  with 
her,  whether  defendant's  act  was  with  or  against  her  will,  and  although 
it  may  have  caused  no  actual  loss  of  her  services  to  her  husband. — Bigaouette 
v.  Paulet,  550. 

CONSPIRACY. 

Action  maintainable  for  a  combination  or  conspiracy,  by  fraudulent  and  ma- 
licious acts,  to  drive  a  trader  out  of  business,  resulting  in  damages. — Van 
Horn  v.  Van  Horn,  295. 

The  gravamen  in  such  an  action  is  not  the  conspiracy,  but  the  malice;  the 
conspiracy  is  matter  of  aggravation  or  inducement  only,  in  the  pleading  and 
evidence,  under  which  one  or  all  of  the  defendants  may  be  found  guilty. — Van 
Horn  v.  Van  Horn,  295. 

A  combination  to  injure  a  man  in  his  trade  by  inducing  his  customers  or 
servants  to  break  their  contracts  with  him,  if  it  results  in  damage,  is  action- 
able.— Quinn  v.  Leathern,  297. 

CONSTABLES. 

See  "Officers." 

CONSTITUTIONAL  LAW. 

An  act  of  the  Legislature,  which  directs  or  allows  that  to  be  done  which 
would  otherwise  be  a  nuisance,  is  valid,  unless  it  can  fairly  be  said  to  be  an 
unwholesome  and  unreasonable  law. — Sawyer  v.  Davis,  473. 

An  injunction  restraining  the  ringing  of  a  factory  bell,  used  to  notify  em- 
ployes, before  a  certain  hour  in  the  morning,  does  not  give  a  vested  right 
which  the  Legislature  is  powerless  to  take  away  by  a  statute  legalizing  the 
ringing  of  such  bell  before  that  hour,  and  on  a  bill  of  review  in  such  case  the 
injunction  will  be  dissolved. — Sawyer  v.  Davis,  473. 

CONTAGIOUS  DISEASES. 

Words  imputing  are  actionable. — Golderman  v.  Stearns,  313. 

The  sale  of  animals  which  the  seller  knows,  but  the  purchaser  does  not,  have 
a  contagious  disease,  is  to  be  regarded  as  a  fraud,  if  the  disease  is  latent, 
and  is  not  disclosed  by  the  vendor. — Grigsby  v.  Stapleton,  G46. 

CONTEMPT. 

Error  of  law  in  adjudging  a  party  guilty  of  contempt  and  ordering  him  to 
be  committed  therefor,  he  having  disobeyed  an  order  of  the  court,  and  the 
only  question  being  whether  his  disobedience  defeated,  impaired,  impeded,  or 


INDEX.  701 

prejudiced  any  right  or  remedy  of  the  defendants,  does  not  affect  the  juris- 
diction of  the  court,  nor  render  the  commitment  void;  and  such  party  cannot 
maintain  an  action  for  false  imprisonment  for  his  arrest  and  imprisonment 
under  the  commitment. — Fischer  v.  Langbein,  242. 

Misconduct  by  an  attorney  in  threatening  a  judge  presiding  at  a  trial,  as  he 
was  descending  from  the  bench,  with  personal  chastisement  for  his  alleged 
conduct  during  the  trial,  is  ground  for  striking  the  name  of  such  attorney 
from  the  roll  of  attorneys  practicing  in  the  court. — Bradley  v.  Fisher,  534. 

CONTRACTS. 

Duty  of  care  on  the  part  of  a  common  carrier  of  passengers  towards  a  pas- 
senger exists  irrespective  of  contract,  and  its  violation  is  a  tort. — Baltimore 
City  Pass.  Ry.  Co.  v.  Kemp,  136. 

The  owner  of  goods  wrongfully  taken  may  waive  the  tort  and  sue  on  an 
implied  contract  of  sale. — Terry  v.  Hunger,  140. 

Omission  to  perform  a  contract  obligation,  if  also  an  omission  of  a  legal 
duty,  may  constitute  a  tort,  even  where  such  legal  duty  arises  from  circum- 
stances not  elements  of  the  contract,  but  merely  connected  with  it  and  de- 
pendent upon  it. — Rich  v.  New  York  Cent  &  H.  R.  R.  Co.,  149. 

In  cases  of  contract,  where  there  is  no  legal  duty  independent  of  the  contract, 
one  not  in  privity  with  a  party  to  the  contract  cannot  recover  against  him  in 
tort  for  an  injury  involving  a  breach  of  the  contract — Winterbottom  v. 
Wright,  155. 

But  where,  in  cases  of  contract,  the  law  imposes  a  duty  towards  third  per- 
sons who  are  not  parties  to  the  contract,  such  persons  may  recover  in  an  ac- 
tion of  tort. — Thomas  v.  Winchester,  157. 

Dealer  in  medicines  selling,  as  a  harmless  remedy,  a  poison  of  similar  ap- 
pearance, liable  for  injuries  caused  thereby  to  a  patient  to  whom  it  was  ad- 
ministered, although  there  was  no  privity  between  them. — Thomas  v.  Win- 
chester, 160. 

To  render  an  infant  who  has  hired  a  horse  liable  for  trespass,  he  must  do 
some  positive  act  which  amounts  to  an  election  to  disaffirm  the  contract. — 
Moore  v.  Eastman,  166. 

It  seems  that  one  who  procures  another  to  break  a  contract  by  the  latter  with 
a  third  party  is  responsible  for  the  breach  only  where  malice  to  such  third 
person  is  shown,  giving  a  distinct  cause  of  action  for  the  malice  which  caused 
the  breach  of  contract  resulting  in  damages  to  him. — Van  Horn  v.  Van  Horn, 
295. 

A  combination  without  justification  to  injure  a  man  in  his  trade  by  inducing 
customers  or  servants  to  break  their  contracts  with  him,  if  it  results  in 
damage,  is  actionable. — Quinn  v.  Leathern,  297. 

Action  not  maintainable  by  one  party  to  a  contract  against  a  third  person 
for  persuading  the  other  party  to  the  contract  not  to  perform  it — Mobile  Life 
Ins.  Co.  v.  Brame,  625. 

A  party,  contracting  to  dredge  a  harbor  and  being  some  distance  therefrom 
at  the  time,  is  entitled  to  rely  on  the  representations  of  the  other  party  as  to 
the  thickness  of  the  rock  to  be  removed,  and  if  such  representations  are  false, 
and  known  to  the  party  making  them  to  be  so,  and  are  relied  upon,  he  is  not 
bound  by  the  contract. — Kingston  v.  L.  P.  &  J.  A.  Smith  Co.,  664. 


702  INDEX. 

Every  contracting  party  not  In  actual  fault  has  a  right  to  rely  on  the  ex- 
press statement  of  an  existing  fact,  the  truth  of  which  is  known  to  the  con- 
tracting party  who  made  it,  and  unknown  to  the  party  to  whom  it  is  made, 
when  such  statement  is  the  basis  of  a  material  engagement. — Hingston  v.  L. 
P.  &  J.  L.  Smith  Co.,  664. 

CONTRIBUTION. 

The  rule  that  there  can  be  no  contribution  among  wrongdoers  applies  only 
to  cases  where  there  has  been  an  intentional  violation  of  the  law,  or  where 
the  wrongdoer  is  to  be  presumed  to  have  known  that  the  act  was  unlawful. — 
Bailey  v.  Bussing,  174. 

Where  a  judgment  was  recovered  in  tort  against  three  defendants  jointly 
interested  in  the  running  of  a  stage  for  an  injury  caused  to  a  traveler  by 
the  negligence  of  one  of  the  defendants  who  was  driving,  one  of  the  other 
defendants,  who  was  compelled  to  pay  the  whole  amount  of  the  judgment, 
was  entitled  to  contribution. — Bailey  v.  Bussing,  172. 

CONTRIBUTORY  NEGLIGENCE. 

Owner  of  tenement  house  who  has  failed  to  provide  fire  escapes  therefor  as 
required  by  statute  is  not  relieved  from  liability  for  damage  thereby  caused 
to  a  tenant,  by  the  fact  that  the  tenant  had  occupied  the  premises  for  a  few 
days  previous  to  the  fire  causing  the  damage. — Willy  v.  Mulledy,  31. 

Leading  horse  tied  behind  wagon  is  not  negligence,  contributing  to  injury 
by  vicious  dog. — Boulester  v.  Parsons,  81. 

Doctrine  does  not  apply  to  cases  of  commission  of  intentional  wrong. — Bar- 
holt  v.  Wright,  194. 

Where  a  person's  own  negligence  or  want  of  ordinary  care  and  caution  so 
far  contributes  to  an  injury  to  himself  that  but  for  such  negligence  or  want 
of  ordinary  care  and  caution  on  his  own  part  the  injury  would  not  have 
happened,  he  cannot  recover  therefor. — Baltimore  &  P.  R.  Co.  v.  Jones,  508. 

Negligence  of  a  plaintiff  precludes  him  from  recovering  in  an  action  for 
defendant's  negligence,  where  he  could,  by  ordinary  care,  have  avoided  the 
consequences  of  defendant's  negligence. — Davies  v.  Mann,  571. 

A  child  of  such  tender  years  as  to  be  incapable  of  exercising  judgment  and 
discretion  cannot  be  charged  with  contributory  negligence. — Twist  v.  Wiuoua 
&  St  P.  R.  Co.,  574. 

But  even  a  child  is  bound  to  use  such  reasonable  care  as  one  of  his  age  and 
mental  capacity  is  capable  of  using ;  and  his  failure  to  do  so  is  negligence. — 
Twist  v.  Winona  &  St  P.  R.  Co.,  575. 

An  infant  three  or  four  years  of  age  is  Incapable  of  contributory  negligence. 
— Mangan  v.  Brooklyn  R.  Co.,  581. 

Where  a  passenger  jumped  from  a  moving  car  to  escape  a  threatened  col- 
lision, and  was  injured,  it  was  competent  on  the  question  of  contributory  neg- 
ligence to  show  the  action  of  the  other  passengers. — Twomley  v.  Central  Park, 
N.  &  E.  R.  R.  Co.,  598. 

An  engineer,  using  a  defective  engine  after  being  assured  that  it  would 
be  repaired,  is  not  guilty  of  contributory  negligence. — Hough  v.  Texas  &  I*. 
Ry.  Co.,  616. 


INDEX.  703 

CONVERSION  OF  PERSONAL  PROPERTY. 

Purchasers  of  stolen  goods,  on  reselling  them,  are  guilty  of  conversion, 
though  no  demand  was  made  for  the  goods,  and  though  they  had  no  notice 
of  the  claim  of  the  real  owners. — Pease  v.  Smith,  122. 

A  wrongful  intent  is  not  an  essential  element  In  a  conversion. — Pease  v. 
Smith,  122. 

The  bringing  of  an  ex  contractu  action  by  the  owner  against  some  of  the 
wrongdoers  is  an  election  to  treat  the  transaction  as  a  sale,  and  the  owner 
cannot  subsequently  sue  the  others  for  conversion. — Terry  v.  Munger,  140. 

The  owner  of  goods  wrongfully  taken  may  waive  the  tort  and  sue  on  an 
Implied  contract  of  sale. — Terry  v.  Munger,  140. 

Where  an  Infant  falsely  represents  himself  to  be  of  age,  and  Induces  another 
to  sell  him  goods,  the  seller  cannot  maintain  trover  against  him  for  the 
goods. — Slayton  v.  Barry,  168. 

Taking  the  property  of  another  without  his  consent,  by  abuse  of  the  pro- 
cess of  the  law,  is  of  itself  a  conversion,  without  a  demand  and  refusal. — 
Grainger  v.  Hill,  292. 

One  to  whom  a  promissory  note  is  delivered  by  the  payee  to  be  negotiated, 
with  instructions  not  to  part  with  the  possession  of  it  without  receiving  the 
money,  and  who  delivers  the  note  to  a  third  person  under  the  promise  of  the 
latter  to  get  it  discounted  and  return  the  proceeds,  is  liable  to  the  payee,  as 
for  a  conversion  of  the  note,  for  the  loss  by  the  appropriation  of  the  proceeds 
of  the  note  by  such  third  person. — Laverty  v.  Snethen,  496. 

Conversion  is  an  unauthorized  assumption  and  exercise  of  the  right  of  own- 
ership over  goods  belonging  to  another,  to  the  exclusion  of  the  owner's  rights. 
— Laverty  v.  Snethen,  497. 

An  agent  who  parts  with  the  property  of  his  principal  in  a  way  or  for  a 
purpose  not  authorized,  is  liable  for  a  conversion ;  but  if  he  parts  with  it  in 
accordance  with  his  authority,  although  at  a  less  price,  or  if  he  misapplies 
the  avails,  or  takes  inadequate  for  sufficient  security,  he  is  not  liable  for  a 
conversion. — Laverty  v.  Snethen,  499. 

A  carrier  is  not  liable  for  conversion  for  nonfeasance,  but  may  be  liable 
for  negligence. — Wamsley  v.  Atlas  S.  S.  Co.,  501. 

Where  goods  intrusted  to  a  common  carrier  for  transportation  are  delivered 
by  him  through  mistake  or  under  a  forged  order  to  a  wrong  person,  such 
misdelivery  constitutes  a  conversion. — Wamsley  v.  Atlas  S.  S.  Co.,  501. 

Where  property  is  intrusted  to  a  common  carrier  for  transportation,  the 
loss  thereof  through  theft  or  negligence  is  not  a  conversion. — Wamsley  v. 
Atlas  S.  S.  Co.,  502. 

Where  a  box  of  negatives  and  prints  disappeared  from  the  storeroom  of  a 
ship  and  was  found  on  the  ship,  but  there  was  no  evidence  as  to  the  manner 
of  its  removal,  the  carrier  was  not  liable  for  conversion. — Wamsley  v.  Atlas 
S.  S.  Co.,  503. 

To  constitute  a  conversion,  there  must  be  acts  amounting  to  a  repudiation 
of  the  owner's  right  in  the  property,  or  an  exercise  of  ownership  over  it  in- 
consistent with  such  right,  or  some  act  done  which  destroys  or  changes  the 
quality  of  the  property. — Frome  v.  Dennis,  505. 

Under  such  circumstances,  the  failure  of  the  borrower  to  deliver  the  prop- 
erty to  the  owner,  upon  demand  by  him  after  it  has  been  returned  to  the 
lender,  is  not  evidence  of  a  conversion. — Frome  v.  Dennis,  507. 


704  INDEX. 

One  who,  having  no  knowledge  of  the  ownership  of  property,  borrows  It  of 
the  persons  having  possession  thereof,  and,  after  using  it,  returns  it  again 
to  him,  supposing  him  to  be  the  owner,  not  liable  for  a  conversion,  in  aE  ac- 
tion by  the  true  owner. — Frome  v.  Dennis,  507. 

A  person,  though  an  infant,  who  hires  a  horse  and  wagon  to  drive  to  a 
particular  place,  and  drives  beyond  such  place,  is  liable  for  a  conversion. — 
Freeman  v.  Boland,  508. 

The  finder  of  an  article  has  such  a  property  therein  as  will  enable  him  to 
keep  it  as  against  all  but  the  rightful  owner,  and  he  may  maintain  trover  for 
its  conversion. — Armory  v.  Delamirie,  509. 

In  an  action  of  trover  for  the  removal  by  defendant  from  a  jewel  of  pre- 
cious stones,  the  value  of  which  is  not  known,  and  which  defendant  does  not 
produce,  the  strongest  presumption  is  against  him,  and  the  measure  of  dam- 
ages is  the  value  of  the  best  stones  that  would  fit  the  socket. — Armory  v. 
Delamirie,  509. 

Possession  of  property,  though  wrongfully  obtained,  is  sufficient  title  to 
maintain  replevin  against  a  stranger. — Anderson  v.  Gouldberg,  510. 

Trover  will  not  lie  unless  at  the  time  of  the  conversion  the  possession  or 
right  to  the  immediate  possession  of  the  property  was  in  plaintiff. — Gordon 
v.  Harper,  511. 

Owner  of  personal  property  leased  to  another  cannot  maintain  trover  for  a 
conversion  pending  the  demise. — Gordon  v.  Harper,  511. 

Sale  and  delivery,  by  one  tenant  in  common  of  personal  property,  of  the 
entire  property  as  exclusively  his  own,  is  a  conversion,  for  which  his  co-tenant 
can  maintain  trover. — Weld  v.  Oliver,  515. 

A  wrongful  taking  or  wrongful  sale  constitutes  a  conversion. — Howitt  v. 
Estelle,  5ia 

A  demand  Is  not  necessary  before  action,  where  the  property  was  wrongfully 
taken  or  sold. — Howitt  v.  Estelle,  516. 

Purchasing  a  horse  from  one  who  had  no  right  to  sell  him,  and  subsequently 
exercising  dominion  over  him,  Is  a  conversion. — Gilmore  v.  Newton,  516. 

The  accidental  loss  of  bills  of  exchange  by  one  lawfully  in  their  possession 
is  not  a  conversion  thereof. — Salt  Springs  Nat.  Bank  v.  Wheeler,  519. 

Demand  and  refusal  of  bills  of  exchange  do  not  establish  a  conversion, 
where  they  have  previously  been  accidentally  lost  or  destroyed. — Salt  Springs 
Nat.  Bank  v.  Wheeler,  519. 

Refusal  to  deliver  property  on  demand  is  merely  evidence  of  conversion, 
and  is  open  to  explanation. — Hett  v.  Boston  &  M.  R.  R..  521. 

Refusal  to  deliver  goods  to  owner  after  attachment  as  property  of  another 
did  not  constitute  a  conversion,  where  the  company  disclaimed  dominion 
over  them. — Hett  v.  Boston  &  M.  R.  R.,  521. 

Where  a  station  agent  had  doubts  as  to  whether  a  charge  for  detention  of 
the  car  containing  plaintiff's  goods  was  lawful,  and  as  to  whether  the 
railroad  company  would  insist  on  payment,  his  refusal  to  deliver  the  goods 
before  obtaining  instructions  did  not  constitute  conversion. — Hett  v.  Boston 
&  M.  R.  R.,  522. 

The  title  to  property  converted  is  not  transferred  by  the  entry  of  a  judg- 
ment, but  remains  in  plaintiff  until  he  has  received  actual  satisfaction. — 
Miller  v.  Hyde,  524. 


INDEX.  705 

CORPORATIONS. 

A  statement  by  directors  of  a  tramway  company  In  a  prospectus  Issued  by 
them  for  the  purpose  of  obtaining  subscriptions  to  shares  in  the  company, 
that  by  their  charter  the  company  had  the  right  to  use  steam  power  instead 
of  horses,  when  in  fact  the  company  had  such  right  only  if  the  consent  of  the 
board  of  trade  should  be  obtained,  and  such  consent  was  afterwards  refused, 
is  not  ground  for  an  action  of  deceit  against  the  directors  by  one  who  took 
shares  in  the  company,  relying  upon  such  false  representation,  if  the  state- 
ment was  made  by  the  directors  in  the  honest  belief  that  it  was  true. — Derry 
v.  Peek,  638. 

Expressions  of  opinion  as  to  value  of  stock  held  not  to  sustain  an  action 
for  deceit. — Lynch  v.  Murphy,  655. 

CO-TENANCY. 

See  "Joint  Tenancy  and  Tenancy  in  Common." 

COURTS. 

SPP  "Contempt";    "Judges";    "Jurisdiction." 

Court  of  general  criminal  jurisdiction  has  power  to  strike  from  the  roll 
of  attorneys  practicing  in  the  court  the  name  of  an  attorney  guilty  of  mis- 
conduct which  is  ground  for  such  an  order. — Bradley  v.  Fisher,  532. 

CRIMINAL  CONVERSATION. 

Action  maintainable  by  husband  for  loss  of  consortium  with  his  wife  which 
is  implied  from  criminal  conversation  of  the  defendant  with  her,  whether 
defendant's  act  was  with  or  against  her  will,  and  although  it  may  have 
caused  no  actual  loss  of  her  services  to  her  husband. — Bigaouette  v.  Paulet, 
550. 

CRIMINAL  LAW. 

Defamatory  charge  of  crime,  see  "Libel" ;  "Slander.** 

Wrongful  intent  necessary  to  constitute  crime. — Bessey  v.  Olliot,  118. 
Lunatic  not  liable  to  indictment  and  punishment. — Morain  v.  Devlin,  126. 

DAMAGES. 

Action  for  tort  not  maintainable  where  damages  are  too  remote,  contingent, 
or  indefinite. — Lamb  v.  Stone,  19;  Clark  v.  Chambers,  100;  Vandenburgh  v. 
Truax,  85;  Lowery  v.  Manhattan  Ry.  Co.,  90;  Milwaukee  &  St.  P.  Ry.  Co. 
v.  Kellogg,  78 ;  Bowen  v.  Hall,  115. 

In  trespass  for  sawing  off  top  of  fence,   plaintiff  entitled  to  recover  full 
value  of   property   destroyed,   though    fence   was   improved   by   defendant's 
act — Fisher  v.  Dowling,  44. 
CHASE  (2o  ED.) — 45 


706  INDEX. 

Action  not  maintanable  for  act  not  In  itself  unlawful,  where  no  damage 
Is  sustained. — Roberts  v.  Roberts,  63. 

Loss  of  membership  in  religious  society,  to  which  no  material  advantages 
are  attached,  not  such  special  damage  as  will  sustain  action  for  speaking 
words  not  actionable  in  themselves. — Roberts  v.  Roberts,  G3. 

Where  there  is  a  distinct  legal  wrong,  law  will  presume  that  damage 
follows  as  proximate  result. — Chicago  W.  D.  Ry.  Co.  v.  Rend,  66. 

Obstruction  of  street  by  railroad,  causing  injury  to  plaintiff's  business,  is 
a  public  nuisance  causing  special  injury  to  plaintiff,  for  which  he  might  main- 
tain an  action  for  damages. — Buchholz  v.  New  York,  L.  E.  &  W.  R.  Co.,  68. 

Where  special  damage  from  false  publication  concerning  statue  was  loss 
of  its  sale,  evidence  of  its  value  as  scientific  curiosity  is  immaterial. — Gott  v. 
Pulsifer,  70. 

Action  for  libel  concerning  plaintiff's  property  not  maintainable  without 
proof  of  special  damage. — Gott  v.  Pulsifer,  70. 

One  who  does  an  illegal  or  michievous  act,  likely  to  prove  injurious  to  oth- 
ers, Is  answerable  for  the  consequences  directly  and  naturally  resulting  there- 
from, although  he  did  not  intend  to  do  the  particular  injury  which  followed. 
— Vandenburgh  v.  Truax,  85. 

That  a  person  under  contract  of  marriage  with  plaintiff  broke  off  the  con- 
tract in  consequence  of  words  spoken  of  plaintiff  by  defendant  is  such  special 
damage  as  will  sustain  an  action  for  slander,  although  the  words  are  not 
actionable  in  themselves.— ^Moody  v.  Baker,  109. 

The  estate  of  a  lunatic  is  responsible  in  damages  for  his  tortious  acts. — 
Mclntyre  v.  Sholty,  123. 

No  liability  results  from  an  injury  arising  from  inevitable  accident. — Har- 
vey v.  Dunlop,  131. 

Cancer  of  the  breast,  if  found  to  be  the  result  of  an  injury  to  plaintiff 
caused  by  defendant's  negligence,  may  be  considered  in  estimating  damages  in 
an  action  for  such  injury. — Baltimore  City  Pass  Ry.  Co.  v.  Kemp,  135. 

An  infant  of  six  liable  for  compensatory  damages  for  entering  premises  of 
another  and  destroying  shrubbery  and  flowers. — Huchting  v.  Engel,  163. 

Damages  cannot  be  apportioned  between  joint  tort  feasors. — Keegan  v.  Hay- 
den,  171. 

That  the  injuries  complained  of  were  inflicted  in  a  fight  engaged  in  by  the 
parties  by  mutual  consent  may  be  shown  in  mitigation  of  damages. — Bar- 
holt  v.  Wright,  796. 

Words  or  insults  may  be  considered  in  mitigation  of  damages  for  assault. — 
Daniel  v.  Giles,  204. 

In  an  action  for  assault,  evidence  that  the  plaintiff  had  insulted  defendant's 
wife  three  hours  before  the  time  of  the  alleged  assault  is  inadmissible  in 
mitigation  of  damages. — Dupee  v.  Lentine,  206. 

Words  not  actionable  in  themselves  may  be  actionable  as  causing  special 
damage  to  the  person  of  whom  they  are  spoken  in  his  office,  profession,  trade, 
employment,  etc. — Forward  v.  Adams,  315 ;  Ireland  v.  McGarvish,  318. 

The  law  presumes  that  damages  result  from  the  speaking  of  words  char- 
ging a  physician  with  gross  ignorance  and  unskillfulness  in  his  profession. — 
Secor  v.  Harris,  320. 

Although  'one  who  has  entered  into  a  contract  to  purchase  land  is  influ- 
enced to  desire  to  withdraw  therefrom  by  statements  as  to  the  vendor's  title 


INDEX.  707 

made  by  a  third  person,  If  the  vendor  assents  to  a  rescission  of  the  contract, 
he  cannot  recover  damages  from  the  third  party  for  the  loss  of  the  sale,  as  It 
is  not  the  legal  consequence  of  the  words  spoken. — Kendall  v.  Stone,  384. 

Special  damage  is  of  the  gist  of  the  action  for  slander  of  title. — Wilson  T. 
Dubois,  387. 

An  entry  upon  land  of  another  without  his  permission,  express  or  Implied, 
or  the  license  or  authority  of  law,  constitutes  a  trespass,  for  which  damages 
are  recoverable,  though  merely  nominal. — Hatch  v.  Donnell,  388;  Newkirk  v. 
Sabler,  391. 

In  an  action  against  a  sheriff  for  a  wrongful  levy  of  an  execution  on  plain- 
tiff's goods,  the  fact  that  the  sheriff  paid  the  proceeds  of  the  sale  to  the 
judgment  creditor  will  not  serve  to  mitigate  the  damages. — Welsh  v.  Wilson, 
546. 

Act  causing  death  of  a  human  being,  though  clearly  involving  pecuniary  loss, 
not  ground  of  action  for  damages  at  common  law. — Mobile  Life  Ins.  Co.  v. 
Brame,  624. 

Fraud  and  damage  together  constitute  a  cause  of  action. — Hickey  v.  Mor- 
rell,  653. 

DAMS. 

Injuries  from  flowage  caused  by  alteration  of  dam  give  right  of  action. — 
Curtice  v.  Thompson,  458. 

DEATH. 

Action  maintainable  against  owner  of  tenement  house  for  damages  for 
death  of  tenant  caused  by  failure'  of  owner  to  provide  fire  escapes,  as  re- 
quired by  statute. — Willy  v.  Mulledy,  30. 

No  justification  admissible  where  life  of  one  person  has  been  lost  by  negli- 
gence of  another,  whether  by  negligent  act  or  negligent  omission  of  duty 
of  the  latter. — Thomas  v.  Winchester,  160. 

Act  causing  the  death  of  a  human  being,  though  clearly  involving  pecu- 
niary loss,  not  the  ground  of  an  action  for  damages  at  common  law. — Mobile 
Life  Ins.  Co.  v.  Brame,  624. 

Insurance  company  has  no  right  of  action  against  the  person  who  feloni- 
ously or  negligently  causes  the  death  of  a  person  insured  by  it,  the  loss 
thereby  caused  the  company  being  too  remote  and  indirect. — Mobile  Life  Ins. 
Co.  v.  Brame,  625. 

By  the  common  law,  actions  for  injuries  to  the  person  abate  by  death,  and 
cannot  be  revived  or  maintained  by  the  executor  or  the  heir. — Mobile  Life 
Ins.  Co.  v.  Brame,  626. 

Where  a  wrongful  death  is  caused  in  one  state,  an  action  therefor  may  be 
maintained  in  another  state  if  the  statute  of  the  state  in  which  the  injury  oc- 
curred is  not  inconsistent  with  the  laws  or  policy  of  the  state  where  the 
action  is  brought — Nelson's  Adm'r  v.  Chesapeake  &  O.  Ry.  Con  681. 

DECEIT. 

See  "Fraud." 

* 

Action  not  maintalnnhle  where  damages  are  too  remote,  Indefinite,  and  con- 
tingent.— Lainb  v.  Stone,  19. 


708  INDEX. 

An  action  lies  against  one  who  Induces  plaintiff  to  marry  a  woman  on  the 
false  representation  that  she  is  virtuous. — Kujek  v.  Goldman,  21. 

One  inducing  sale  of  goods  to  another  by  false  representations  is  liable  for 
the  deceit,  though  he  has  no  interest  in  the  sale  and  has  not  colluded  with  one 
who  has. — Pasley  v.  Freeman,  73. 

An  infant  who  falsely  represents  himself  to  be  of  age  and  induces  another  to 
sell  him  goods  is  not  liable  in  tort  for  so  obtaining  the  goods. — Slayton  v. 
Barry,  168. 

Action  maintainable  for  damages  sustained  from  a  false  representation 
made  by  defendant,  knowing  it  to  be  false,  or  without  belief  in  its  truth,  or 
recklessly,  without  caring  whether  it  be  true  or  false. — Derry  v.  Peek,  636. 

Proof  of  actual  fraud  necessary,  in  England,  to  support  action  to  recover 
damages  for  deceit. — Derry  v.  Peek,  636. 

But  a  false  statement,  made  through  carelessness,  and  without  reasonable 
ground  for  believing  it  to  be  true,  although  it  may  be  evidence  of  fraud,  does 
not,  according  to  the  English  rule,  necessarily  constitute  fraud;  and  such  a 
statement,  made  in  the  honest  belief  that  it  is  true,  is  not  fraudulent,  and 
does  not  render  the  person  making  it  liable  to  an  action  of  deceit — Derry  v. 
Peek,  637. 

In  action  of  deceit,  if  fraud  be  proved,  the  motive  of  the  person  guilty  of  it 
is  immaterial;  it  matters  not  that  there  was  no  intention  to  cheat  or  injure 
the  person  to  whom  the  statement  was  made. — Derry  v.  Peek,  637. 

A  statement  by  directors  of  a  tramway  company,  in  a  prospectus  issued  by 
them  for  the  purpose  of  obtaining  subscriptions  to  shares  in  the  company,  that 
by  their  charter  the  company  had  the  right  to  use  steam  power  instead  of 
horses,  when  in  fact  the  company  had  s"uch  right  only  if  the  consent  of  the 
board  of  trade  should  be  obtained,  and  such  consent  was  afterwards  refused, 
is  not  ground  for  an  action  of  deceit  against  the  directors  by  one  who  took 
shares  in  the  company,  relying  upon  such  false  representation,  if  the  state- 
ment was  made  by  the  directors  in  the  honest  belief  that  it  was  true. — Derry 
v.  Peek,  638. 

Action  maintainable,  in  Massachusetts,  for  damages  for  false  representa- 
tions by  defendant,  in  stating,  as  of  his  own  knowledge,  material  "facts  sus- 
ceptible of  knowledge,  which  were  false,  although  he  did  not  know  them  to  be 
false ;  that  he  believed  them  to  be  true  is  no  defense. — Litchfield  v.  Hutchin- 
son,  643. 

On  a  sale  of  an  article  for  a  particular  purpose,  the  suppression  by  the  ven- 
dor of  a  latent  defect  which  makes  the  article  unfit  for  such  purpose  is  a  de- 
ceit.— Grigsby  v.  Stapleton,  646. 

A  statement  by  a  warehouseman  in  a  circular  soliciting  patronage  that  the 
.  exterior  of  his  warehouse  is  fireproof  is  the  statement  of  a  matter  of  fact, 
not  a  mere  expression  of  opinion,  and  if  made  by  him  with  knowledge  that 
it  was  false,  and  with  intent  to  deceive,  a  person  induced  thereby  to  store 
in  the  warehouse  property  which  is  destroyed  by  fire  communicated  to  por- 
tions of  the  exterior  which  are  not  fireproof,  may  recover  from  the  warehouse- 
man for  the  loss  so  incurred. — Hickey  v.  Morrell,  652. 

Expressions  of  opinion  by  a  promoter  of  a  corporation  as  to  value  of  its 
stock  do  not  sustain  an  action  of  deceit. — Lynch  v.  Murphy,  655. 

When  the  real  quality  of  property  sold  is  obvious  to  ordinary  intelligence, 
and  the  vendor  and  vendee  have  equal  knowledge  or  equal  means  of  acquir- 


INDEX.  4  709 

ing  Information,  and  the  truth  or  falsity  of  representations  made  by  the 
vendor  as  to  its  quality  may  be  ascertained  by  the  vendee  by  the  exercise  of 
ordinary  inquiry  or  diligence,  and  they  are  not  made  for  the  purpose  of  throw- 
ing him  off  his  guard  and  diverting  him  from  making  inquiry  and  examina- 
tion, which  every  prudent  person  ought  to  make,  the  vendee  has  no  ground 
of  action  for  fraud,  though  he  purchases  the  property  in  reliance  upon  such 
representations. — Long  v.  Warren,  660. 

Action  not  maintainable  by  purchaser  of  a  farm  against  the  vendor  for 
false  representations  by  the  latter,  to  induce  the  purchase,  in  regard  to  the 
absence  of  a  noxious  grass  from  the  farm,  where  it  appears  that  any  attempt 
to  find  such  grass  on  the  farm,  made  before  the  purchase,  would  have  dis- 
closed its  existence. — Long  v.  Warren,  660. 

False  representations  to  a  commercial  agency  as  to  the  financial  standing 
of  a  firm,  made  with  the  intent  that  they  should  be  communicated  to  and 
acted  upon  by  persons  interested  in  the  firm's  standing,  will  sustain  an  action 
for  deceit  by  persons  relying  thereon. — Eaton,  Cole  &  Burnham  Co.  v.  Avery, 
668. 

To  sustain  an  action  for  deceit,  the  misrepresentations  must  have  been 
made  to  plaintiff  individually,  or  as  one  of  the  public,  or  as  one  of  the  class 
to  whom  they  are  in  fact  addressed,  or  have  been  intended  to  influence  his 
conduct  in  the  particular  of  which  he  complains. — Hunnewell  v.  Duxbury,  671. 

An  action  for  fraudulently  inducing  plaintiff  to  take  notes  of  a  corporation 
by  false  representations  of  its  oflicers  as  to  the  amount  of  its  paid-lip  capital 
stock,  cannot  be  maintained  by  evidence  of  the  falsity  of  their  statement  of 
the  amount  of  paid-up  capital  stock  filed  with  the  state  commissioner. — Hun- 
newell v.  Duxbury,  672. 

In  an  action  founded  on  deceit,  it  is  necessary  to  prove  that  false  repre- 
sentations were  fraudulently  made. — Humphrey  v.  Merriam,  673. 

In  an  action  for  deceit,  it  is  necessary  to  show  that  the  false  representations 
were  relied  on. — Humphrey  v.  Merriam,  673. 

False  representations  as  to  the  value  of  mining  stock  will  not  sustain  an 
action  for  deceit,  where  plaintiff  did  not  rely  on  the  statements,  but  inter- 
viewed other  persons  in  regard  to  the  mine,  and  acted  upon  the  information 
obtained  from  them. — Humphrey  v.  Merriam,  673. 

An  intent  to  deceive  la  a  necessary  element  of  fraud. — Humphrey  v.  Mer- 
riam, 673. 

DEFAMATION. 

See  "Libel";    "Slander";  "Subornation  of  Perjury." 

DEMAND. 

Purchasers  of  stolen  goods,  on  reselling  them,  are  guilty  of  conversion, 
though  no  demand  was  made  for  the  goods  while  in  their  possession.— Pease 
v.  Smith,  122. 

Refusal  to  deliver  personal  property  to  the  owner  on  demand  is  not  neces- 
sarily evidence  of  conversion,  if  delivery  was  impossible. — Frome  v.  Dennis, 
507. 

Where  property  is  wrongfully  taken  or  sold,  a  demand  is  not  necessary  be- 
fore an  action  for  conversion. — Howitt  v.  Estelle,  516. 


710  INDEX. 

Where  one  purchases  a  horse  in  good  faith  from  one  who  had  no  right  to 
sell  him,  and  subsequently  exercises  dominion  over  him,  no  demand  is  neces- 
sary before  commencing  an  action  for  conversion. — Gilmore  v.  Newton,  517. 

Not  necessary  before  suit  against  a  sheriff  or  constable  for  a  wrongful 
seizure  and  sale,  under  execution,  of  property  not  belonging  to  the  execution 
debtor. — Boulwar*  v.  Craddock,  544. 

DETINUE. 

Action  of  trover  a  substitute  for  the  action  of  detinue. — Gordon  v.  Harper, 
512. 

DOGS. 

See  "Animals." 

Leading  horse  tied  behind  wagon  Is  not  negligence  contributing  to  injury 
by  vicious  dog. — Boulester  v.  Parsons,  81. 

The  act  of  the  owner  of  one  of  two  dogs  engaged  in  a  fight,  in  attempting 
to  part  them,  is  a  lawful  and  proper  act,  which  he  may  do  by  proper  and  safe 
means,  and  he  is  not  liable  for  an  injury  thereby  done  to  another,  which  is 
the  result  of  pure  accident,  or  is  involuntary  and  unavoidable. — Brown  v. 
Kendall,  130. 

A  dog  accustomed  to  bite  persons  is  a  public  nuisance,  and  may  be  killed 
by  any  one  when  found  running  at  large. — Muller  v.  McKesson,  484. 

Not  being  animals, ferae  naturae,  an  action  at  law  lies  for  destroying  them, 
although,  at  common  law,  the  stealing  of  them  does  not  amount  to  larceny. — 
White  v.  Brantley,  489. 

DOG  SPEARS. 

Use  held  not  illegal,  in  a  case  of  injury  to  a  dog;  but,  It  seems,  otherwise. 
In  case  of  injury  to  a  human  being. — Clark  v.  Chambers,  103. 

DOORS. 

Officer  may  enter  outer  door  of  dwelling  peaceably  for  purpose  of  serving 
process  upon  person  within. — Hager  v.  Danforth,  213. 

Not  lawful  for  officer,  in  order  to  serve  civil  process,  to  break  open  outer 
door  of  dwelling  of  the  party,  although  such  dwelling  is  also  used  by  the 
party  for  transaction  of  business. — Welsh  v.  Wilson,  546. 

DRAINAGE. 

Action  maintainable  for  obstructing  drain.— Webb  v.  Portland  Manufg 
Co.,  39. 

Owner  of  land  so  situated  that  surface  waters  from  the  land  above  natural- 
ly descend  upon  and  pass  over  it,  may,  in  good  faith,  and  for  the  purpose 
of  building  upon  and  improving  his  land,  fill  and  grade  it,  although  thereby 
the  water  is  prevented  from  reaching  it,  and  is  detained  upon  the  laud  above. — 
Barkley  v.  Wilcox,  434. 


INDEX.  711 

DURESS. 

Release  of  right  of  action  for  false  imprisonment  procured  by  duress  Is 
void. — Guilleaume  v.  Howe,  238. 

EASEMENTS. 

Of  light  and  air,  not  acquired  by  prescription  of  20  years.— Guest  v.  Rey- 
nolds, 4 ;  Miller  v.  Woodhead,  7. 

ELECTION  OF  REMEDIES. 

Where,  by  negligence  or  wrongful  act  on  the  part  of  a  common  carrier  of 
passengers,  a  personal  injury  is  suffered  by  a  passenger,  he  may  sue  for  a 
breach  of  the  contract,  if  there  is  one,  or,  at  his  election,  may  proceed  as  for  a 
tort — Baltimore  City  Pass.  Ry.  Co.  v.  Kemp,  137. 

The  bringing  of  an  ex  contractu  action  by  the  owner  against  some  of  the 
wrongdoers  is  an  election  to  treat  the  transaction  as  a.  sale,  and  the  owner 
cannot  subsequently  sue  the  others  for  conversion. — Terry  v.  Hunger,  140. 

ELECTIONS  AND  VOTERS. 

Violation  of  the  right  to  vote  at  election  a  ground  of  action. — Smith  y. 
Thackerah,  38. 

ELEVATED  RAILROADS. 

Action  maintainable  for  personal  injuries  to  plaintiff  from  being  run  over 
on  the  street  by  horse  caused  to  run  away  by  fire  negligently  allowed  to 
fall  upon  him  from  locomotive  on  defendant's  elevated  railway. — Lowery  v. 
Manhattan  Ry.  Co.,  88. 

ENGLISH  DOCTRINE. 

Of  ancient  lights,  not  applicable  in  Illinois. — Guest  v.  Reynolds,  4;  Miller 
v.  Woodhead,  7. 

That  judges,  counsel,  parties,  and  witnesses  are  absolutely  exempted  from 
liability  to  an  action  for  defamatory  words  published  in  course  of  judicial 
proceedings,  generally  adopted  in  the  American  courts,  with  the  qualification, 
as  to  parties,  counsel,  and  witnesses,  that,  in  order  to  be  privileged,  their 
statements  must  be  pertinent  and  material  to  the  case. — Rice  v.  Coolidge,  26. 

Action  maintainable  for  speaking  words  imputing  a  criminal  offense  punish- 
able corporally,  though  not  indictable. — Webb  v.  Beavan,  305. 

That  where  highway  is  obstructed  temporarily,  a  traveler  has  a  right  to  go 
upon  adjoining  lands,  without  being  guilty  of  trespass,  recognized  In  Amer- 
ica.— Campbell  v.  Race,  409. 

A  false  statement,  made  through  carelessness  and  without  reasonable  ground 
for  belieying  it  to  be  true,  although  it  may  be  evidence  of  fraud,  does  not, 
according  to  the  English  rule,  necessarily  constitute  fraud;  and  such  a 


712  INDEX. 

statement,  made  In  the  honest  belief  that  it  is  true,  is  not  fraudulent,  and 
does  not  render  the  person  making  it  liable  to  an  action  of  deceit. — Derry  y. 
Peek,  641. 

EQUITY. 

Will  restrain  repetition  or  continuance  of  injurious  act  which  may  become 
the  foundation  or  evidence  of  an  adverse  right. — Webb  v.  Portland  Manuf  g 
Co.,  39. 

Acquiescence  or  laches  may  bar  equitable  relief  against  a  nuisance. — Camp- 
bell v.  Seaman,  423. 

A  nuisance  will  be  restrained,  in  order  to  prevent  irreparable  injury  and  a 
multiplicity  of  suits,  even  though  the  injury  is  only  occasional. — Campbell 
v.  Seaman,  423. 

Although  equity  will  not  interfere  to  secure  to  a  party  a  legal  right  of  no 
value  to  him,  but  leave  him  to  his  remedy  at  law,  it  will  not  restrain  a  party 
from  enforcing  his  legal  right  upon  the  ground  that  it  is  of  no  value. — Clinton 
v.  Myers,  440. 

Will  restrain  pollution  of  a  water  course  by  acts  which  tend  to  create  a 
nuisance  of  a  continuous  and  constantly  accruing  nature,  for  which  an  action 
at  law  can  furnish  no  adequate  relief. — Merrifield  v.  Lombard,  442. 

EVIDENCE. 

On  the  question  of  the  probability  that  a  person  whose  death  was  caused  by 
a  fire  in  a  tenement  house  would  have  escaped  had  a  fire  escape  been  pro- 
vided, as  required  by  law,  it  may  be  inferred,  from  the  construction  of  the 
house,  and  the  structure  of  fire  escapes,  where  one  would  probably  have  been 
placed. — Willy  v.  Mulledy,  31. 

The  facts  that  a  person,  whose  death  was  caused  by  a  fire  in  a  tenement 
house,  knew  that  there  was  a  scuttle  in  the  roof,  had  time  after  notice  of  the 
fire  to  reach  it,  and  made  efforts  to  escape,  are  sufficient  to  justify  a  jury  in 
finding  that  such  person  tried  to  escape  in  that  direction,  and  failed  for 
want  of  a  ladder  to  the  scuttle,  which  the  owner  had  not  provided  as  re- 
quired by  the  statute. — Willy  v.  Mulledy,  32. 

Where  act  or  omission  complained  of  is  not  a  distinct  wrong,  damages  must 
be  proved  to  sustain  action. — Chicago  W.  D.  Ry.  Co.  v.  Rend,  6G. 

In  an  action  of  assault,  evidence  of  insults  occurring  three  hours  before  the 
time  of  the  alleged  assault  is  inadmissible. — Dupee  v.  Lentine,  206. 

In  an  action  against  a  teacher  for  assault  and  battery  in  whipping  a  pupil, 
evidence  of  habitual  misconduct  of  the  pupil  prior  to  the  punishment  is  ad- 
missible on  behalf  of  defendant. — Sheehan  v.  Sturges,  211. 

In  an  action  of  trover,  on  the  question  of  the  possession  by  defendant  of 
the  property  in  question,  declarations  of  himself  and  of  the  person  from 
whom  he  received  possession,  contemporaneous  with  the  transfer  and  indica- 
tive of  its  character,  are  admissible  as  part  of  the  res  gestse. — Frome  v. 
Dennis,  507. 

Where  a  passenger  jumped  from  a  moving  car  to  escape  a  threatened  col- 
lision and  was  injured,  it  was  competent  on  the  question  of  contributory  negli- 
gence to  show  the  action  of  the  other  passengers. — Twomley  y.  Central  Park, 
N.  &  E.  R.  R.  Co.,  598. 


INDEX.  713 

EXCAVATIONS. 

Occupant  of  land  lawfully  making  excavation  therein  In  ordinary  manner, 
not  near  highway,  not  liable  to  injuries  to  trespasser  falling  Into  excavation. — 
Gramlich  v.  Wurst,  13. 

One  making  excavations  In  land  is  liable  for  Injury  caused  thereby  to  land 
of  adjoining  tract  In  Its  natural  condition,  even  though  there  was  no  negli- 
gence in  making  such  excavations. — Gilmore  v.  Driscoll,  45. 

One  making  excavations  in  land  is  not  liable,  in  the  absence  of  negligence, 
for  injury  to  improvements  on  adjoining  tract,  unless  adjoining  owner  has 
acquired  right  to  support  thereof  by  grant  or  prescription. — Gilmore  v.  Dris- 
coll, 48. 

That  land  In  which  one  makes  excavations  does  not  belong  to  him  does 
not  affect  his  liability  for  injury  to  adjoining  lot. — Gilmore  v.  Driscoll,  49. 

Injuries  to  adjoining  property,  caused  by  excavations  in  mining,  accrues  at 
time  of  injury,  and  not  at  time  of  excavation. — Bonomi  v.  Backhouse,  66. 

EXECUTION. 

Where  an  attorney  for  Judgment  creditors  issued  a  void  execution  for  ar- 
rest of  the  judgment  debtor,  the  judgment  creditors  were  liable. — Guilleaume 
v.  Rowe,  238. 

A  sheriff  or  constable  who,  under  an  execution,  seizes  and  sells  property  not 
belonging  to  the  judgment  debtor,  though  in  his  possession,  is  a  mere  tres- 
passer, and  liable  to  an  action  by  the  owner  of  the  property  without  any  de- 
mand before  suit. — Boulware  v.  Craddock,  544. 

Levy  of  execution  by  breaking  outer  door  of  dwelling  of  execution  debtor, 
invalid;  and  the  fact  that  the  sheriff  making  such  levy  sold  the  goods  and 
paid  the  proceeds  to  the  execution  creditor  is  not  available  to  him  in  mitiga- 
tion of  damages. — Welsh  v.  Wilson,  546. 

EXPLOSIVES. 

See  "Blasting";    "Gas." 

Keeping  or  manufacturing  gunpowder  or  fireworks,  being  a  lawful  business, 
does  not  necessarily  constitute  a  nuisance ;  whether  it  does  depends  upon  the 
locality,  the  quantity,  and  the  surrounding  circumstances,  and  not  entirely 
upon  the  degree  of  care  used. — Heeg  v.  Licht,  450. 

FALSE  IMPRISONMENT. 

One  who  Instigates  and  procures  an  officer  to  arrest  another  upon  a 
void  warrant  is  liable  to  an  action  therefor. — Rice  v.  Coolidge,  27. 

Obstructing  the  passage  of  a  person  in  one  direction  only  along  a  portion  of 
a  public  highway,  he  being  free  to  go  in  another  direction,  does  not  amount 
to  an  imprisonment  for  which  he  can  maintain  an  action  for  false  imprison- 
ment.— Bird  v.  Jones,  215. 

Where  a  tax  officer,  being  present  in  the  room  with  plaintiff,  called  upon 
her  to  pay  a  tax,  which  she  declined  doing  until  arrested,  and  then  told  her 


714  INDEX. 

be  arrested  her,  whereupon  she  yielded  and  paid  the  tax,  this  amounted  to 
an  arrest  and  imprisonment,  though  he  did  not  lay  his  hand  upon  her. — Pike 
v.  Hanson,  222. 

Words  are  sufficient  to  constitute  imprisonment,  if  they  impose  a  restraint 
on  the  person. — Pike  v.  Hanson,  222. 

Detention  of  passenger  by  carrier,  for  the  purpose  of  enforcing  payment 
of  fare,  ille'gal. — Lynch  v.  Metropolitan  El.  Ry.  Co.,  223. 

Written  complaint  on  oath  that  certain  goods  were  stolen  and  that  com- 
plainant "has  probable  cause  to  suspect  and  does  suspect"  that  a  certain  person 
stole  them,  without  further  proof,  does  not  give  a  justice  jurisdiction  to  issue 
a  warrant  for  the  arrest  of  the  person  charged,  so  as  to  protect  him  from 
liability  for  false  imprisonment. — Blodgett  v.  Race,  227. 

Person  making  sworn  complaint  before  a  justice  is  not  liable  for  unlawful 
imprisonment,  even  if  acts  of  justice  were  extra  judicial. — Grove  v.  Van  Duyn, 
233. 

A  judicial  officer  having  general  powers  is  responsible  for  causing  an  ar- 
rest in  all  cases  over  which  he  has  cognizance,  unless  the  case  is,  by  com- 
plaint or  other  proceeding,  put  colorably  under  his  jurisdiction. — Grove  v. 
Van  Duyn,  233. 

A  complainant,  obtaining  a  warrant  from  a  magistrate  having  no  jurisdic- 
tion of  the  cause  and  inducing  an  officer  to  arrest  defendant  thereon,  is  liable, 
even  though  the  warrant  is  valid  on  its  face. — Emery  v.  Hapgood,  236. 

Release  of  right  of  action  for  false  imprisonment  procured  by  duress  is 
void. — Guilleaume  v.  Rowe,  238. 

Where  an  attorney  for  judgment  creditors  issued  a  void  execution  for  ar- 
rest of  the  judgment  debtor,  the  judgment  creditors  were  liable. — Guilleaume 
v.  Rowe,  238. 

Complaint  held  insufficient  to  justify  warrant  for  arrest,  so  as  to  protect 
officer. — Elsemore  v.  Longfellow,  240. 

An  officer  making  an  arrest  under  process  issued  by  a  magistrate  is  liable 
for  false  imprisonment,  if  the  process  is  void  on  its  face. — Elsemore  v.  Long- 
fellow, 240. 

Liability  for  arrest  under  void  process  attaches  when  wrong  is  committed, 
without  such  process  being  vacated  or  set  aside;  but  process  merely  irregu- 
lar must  be  vacated  or  annulled  before  an  action  can  be  maintained  for  dam- 
ages from  its  enforcement. — Fischer  v.  Langbein.  242. 

Under  a  constitutional  provision  that  no  warrant  to  seize  any  person  shall 
issue  without  special  designation  of  the  person  to  be  seized,  a  warrant  describ- 
ing the  accused  as  "a  person  whose  name  is  not  known,  but  whose  person  is 
well  known,  of  V.,  of  the  county  of  K.,"  is  insufficient  to  protect  an  officer 
making  an  arrest  thereunder. — Harwood  v.  Siphers,  247. 

Where  there  is  no  conflict  in  the  evidence  in  actions  for  false  imprisonment, 
the  question  of  probable  cause  is  one  of  law. — Burns  v.  Erben,  251. 

In  an  action  against  an  officer  for  false  imprisonment,  defense  that  a  felony 
has  been  committed  must  be  specifically  pleaded. — White  v.  McQueen,  253. 

Arrest  without  warrant,  where  warrant  is  by  law  necessary,  constitutes 
false  imprisonment — Quinn  v.  Heisel,  255 ;  Phillips  v.  Trull,  259. 

The  gravamen  of  the  offense  of  false  imprisonment  is  the  unlawful  deten- 
tion of  another  without  his  consent,  and  malice  is  not  an  essential  element 
thereof.— Hobbs  v.  Ray,  264. 


INDEX.  715 

An  action  for  false  Imprisonment  will  not  He  for  an  arrest  made  under 
lawful  process,  though  wrongfully  obtained;  the  remedy  being  an  action 
for  malicious  prosecution. — Hobbs  v.  Ray,  264. 

One  causing  the  arrest  of  an  innocent  person  on  a  charge  of  crime,  upon  a 
groundless  suspicion,  Is  liable  to  him  in  damages  therefor. — Carl  v.  Ayers,  271. 

FALSE  REPRESENTATIONS. 

See  "Deceit";   "Fraud." 

FELONY. 

An  officer  is  Justified  In  making  an  arrest  without  warrant,  though  no 
felony  has  been  committed,  if  he  has  reasonable  ground  to  suspect  that  one 
has  been. — Burns  v.  Erben,  250. 

An  arrest  by  private  individual  Is  authorized  only  where  a  felony  has  In 
fact  been  committed  and  there  was  reasonable  ground  to  suspect  the  person 
arrested. — Burns  v.  Erben,  250. 

In  an  action  against  an  officer  for  false  imprisonment,  defense  that  a  felony 
has  been  committed  must  be  specifically  pleaded. — White  v.  McQueen,  253. 

FENCES. 

Fence  which  obstructs  access  of  light  and  air  to  house  of  adjoining  owner 
not  ground  of  action  unless  adverse  right  is  invaded. — Guest  v.  Reynolds,  4. 

Owner  or  occupant  of  land  not  required  to  fence  It  to  prevent  injuries  to 
trespassers  from  falling  into  lawful  excavation,  not  near  highway. — Gram- 
lich  v.  Wurst,  13. 

Tenant  or  owner  not  obliged  to  fence  against  adjoining  owner  or  occupier, 
at  common  law,  except  by  prescription ;  and,  In  that  case,  only  against  cattle 
rightfully  in  the  adjoining  close. — Lawrence  v.  Combs,  414. 

FERRIES. 

Action  on  the  case  does  not  He  for  disturbance  of  a  ferry  franchise,  where 
the  statute  only  gave  remedy  for  penalty. — Almy  v.  Harris,  35. 

FIRE  ESCAPES. 

Failure  of  owner  of  tenement  house  to  comply  with  statute  requiring  fire 
escapes  to  be  provided  therefor  is  a  breach  of  duty,  for  which  he  is  liable  to 
a  tenant  for  damage  thereby  caused  to  the  latter. — Willy  v.  Mulledy,  30. 

FIRES. 

A  statute  providing  that  a  railroad  shall  be  responsible  to  owner  of  prop- 
erty injured  by  fire  is  not  unavailing,  because  not  providing  remedy  or  pre- 
scribing form  of  action. — Stearns  v.  Atlantic  &  St  L.  R.  Co.,  33. 


716  INDEX. 

The  burning  of  plaintiff's  property  by  fire  communicated  from  a  building 
which  had  been  set  on  fire  by  sparks  allowed  to  fall  upon  It  by  negligence 
on  defendants'  part  is  not  too  remote  from  such  negligence  to  permit  a  recov- 
ery therefor,  if  the  burning  of  his  property  was  a  result  naturally  and  rea- 
sonably to  have  been  expected  from  the  burning  of  such  building,  under  the 
circumstances,  and  the  result  of  the  continued  effect  of  the  sparks  falling  on 
the  building,  without  the  aid  of  other  causes  not  reasonably  to  have  been 
expected. — Milwaukee  &  St.  P.  Ry.  Co.  v.  Kellogg,  76. 

Action  maintainable  for  personal  injuries  to  plaintiff  from  being  run  over 
in  the  street  by  horse  caused  to  run  away  by  fire  negligently  allowed  to  fall 
upon  him  from  locomotive  on  defendant's  elevated  railway. — Lowery  v.  Man- 
hattan Ry.  Co.,  88. 

Where  defendant  was  negligent  in  keeping  oil  upon  a  platform  which  was 
subsequently  fired  by  carelessness  of  another,  the  acts  of  defendant  are  not 
the  proximate  cause  of  the  fire. — Stone  v.  Boston  &  A.  R.  Co.,  98. 

FIREWORKS. 

Keeping  or  manufacturing  gunpowder  or  fireworks,  being  a  lawful  business, 
does  not  necessarily  constitute  a  nuisance ;  whether  it  does  depends  upon  the 
locality,  the  quantity,  and  the  surrounding  circumstances,  and  not  entirely 
upon  the  degree  of  care  used?— Heeg  v.  Licht,  450. 

FRAUD. 

See  "Deceit" 

Purchasing  from  debtor  property  subject  to  attachment,  and  aiding  him 
to  abscond,  not  ground  of  action  for  fraud  by  creditor  having  no  lien  or  claim 
on  such  property. — Lamb  v.  Stone,  19. 

An  action  lies  against  one  who  induces  plaintiff  to  marry  a  woman  on  the 
false  representation  that  she  is  virtuous. — Kujek  v.  Goldman,  21. 

One  inducing  sale  of  goods  to  another  by  false  representations  is  liable  for 
the  deceit,  though  he  has  no  interest  in  the  sale  and  has  not  colluded  with  one 
who  has. — Pasley  v.  Freeman,  73. 

An  unreasonable  delay  in  performance  of  an  agreement  to  do  a  certain  act 
may  be  intended  to  effect  a  scheme  to  gain  an  advantage  by  unlawful  means 
and  with  fraudulent  motives,  and  such  acts  may,  therefore,  sustain  action  for 
a  tort,  such  breach  of  contract  being  one  of  the  elements  constituting  the 
tort— Rich  v.  New  York  Cent  &  H.  R.  R.  Co.,  149. 

In  an  action  of  tort  for  an  alleged  fraud,  one  of  the  elements  of  which  is 
a  breach  of  a  contract  by  an  unreasonable  delay  in  performance  of  the  con- 
tract obligation,  proof  of  the  contract,  and  of  the  delay  in  performance  there- 
of, and  of  the  reasons  therefor,  are  essential  links  in  the  chain,  and  the  rela- 
tive situations  of  the  parties  and  other  circumstances  which  are  elements  of 
the  transaction  may  be  shown. — Rich  v.  New  York  Cent  &  H.  R.  R.  Co.,  150. 

Representations  made  to  a  father  to  induce  him  to  purchase  a  gun  for  the 
use  of  his  son,  known  by  the  vendor  making  them  to  be  false,  by  which  the 
son  is  induced  to  use  the  gun,  operate  as  a  distinct  fraud  on  the  son ;  and  he 
may  maintain  an  action  against  the  vendor  for  injuries  sustained  in  conse- 
quence thereof. — Winterbottom  v.  Wright,  154. 


INDEX.  717 

An  infant  who  falsely  represents  himself  to  be  of  age  and  Induces  another 
to  sell  him  goods  is  not  liable  in  trover  against  him  for  the  goods. — Slayton 
v.  Barry,  1G8. 

Proof  that  a  false  representation  was  made  with  knowledge  of  its  falsity, 
or  without  belief  in  its  truth,  or  recklessly,  without  caring  whether  it  be  true 
or  false,  is  sufficient  proof  of  actual  fraud,  required  by  the  English  rule,  to 
support  an  action  for  damages  for  deceit. — Derry  v.  Peek,  636. 

In  an  action  of  deceit,  if  fraud  be  proved,  the  motive  of  the  person  guilty 
of  it  is  immaterial ;  it  matters  not  that  there  was  no  intention  to  cheat  or 
injure  the  person  to  whom  the  statement  was  made. — Derry  v.  Peek,  637. 

But  a  false  statement,  made  through  carelessness  and  without  reasonable 
ground  for  believing  it  to  be  true,  although  it  may  be  evidence  of  fraud,  does 
not,  according  to  the  English  rule,  necessarily  constitute  fraud ;  and  such  a 
statement,  made  in  the  honest  belief  that  it  is  true,  is  not  fraudulent,  and 
does  not  render  the  person  making  it  liable  to  an  action  of  deceit. — Derry  v. 
Peek,  641. 

Action  maintainable,  in  Massachusetts,  for  damages  for  false  representa- 
tions by  defendant,  in  stating,  as  of  his  own  knowledge,  material  facts  sus- 
ceptible of  knowledge,  which  were  false,  although  he  did  not  know  them  to 
be  false ;  that  he  believed  them  to  be  true  is  no  defense. — Litchfleld  v.  Hutch- 
inson,  643. 

Action  maintainable  for  fraud,  coupled  with  damage. — Hickey  v.  Morrell, 
653. 

Expressions  of  opinion  by  a  promoter  of  a  corporation  as  to  value  of  its 
stock  do  not  sustain  an  action  of  deceit. — Lynch  v.  Murphy,  655. 

Every  contracting  party  not  in  actual  fault  has  a  right  to  rely  on  the  ex- 
press statement  of  an  existing  fact,  the  truth  of  which  is  known  to  the  con- 
tracting party  who  made  it  and  unknown  to  the  party  to  whom  it  is  made, 
when  such  statement  is  the  basis  of  a  material  engagement — Kingston  v.  L. 
P.  &  J.  L.  Smith  Co.,  664. 

A  party,  contracting  to  dredge  a  harbor  and  being  some  distance  therefrom 
at  the  time,  is  entitled  to  rely  on  the  representations  of  the  other  party,  who 
has  done  a  portion  of  the  work,  as  to  the  thickness  of  the  rock  to  be  removed, 
and,  if  such  representations  are  false,  and  known  to  the  party  making  them 
to  be  so,  and  are  relied  upon,  he  is  not  bound  by  the  contract. — Kingston  v. 
L.  P.  &  J.  A.  Smith  Co.,  664. 

Representations  made  after  soundings  have  been  taken  in  a  harbor  and  a 
chart  thereof  made,  with  which  the  party  making  the  representations  was 
familiar  and  the  other  party  not,  were  not  mere  expressions  of  opinion,  but 
were  matters  of  fact  which  could  be  relied  on,  though  not  accompanied  with 
specific  statements  as  to  actual  measurements  having  been  made. — Kingston 
v.  L.  P.  &  J.  A.  Smith  Co.,  665. 

False  representations  to  a  commercial  agency  as  to  the  financial  standing 
of  a  firm,  made  with  the  intent  that  they  should  be  communicated  to  and 
acted  upon  by  persons  interested  in  the  firm's  standing,  will  sustain  an  action 
for  fraud  by  persons  relying  thereon. — Eaton,  Cole  &  Burnham  Co.  v.  Avery. 
668. 

To  sustain  an  action  for  fraud,  the  misrepresentations  must  have  been  made 
to  plaintiff  individually,  or  as  one  of  the  public,  or  as  one  of  the  class  to 
whom  they  are  in  fact  addressed,  or  have  been  intended  to  influence  his  con- 
duct in  the  particular  of  which  he  complains.— Hunnewell  v.  Duxbury,  67L 


718  INDEX. 

An  action  for  fraudulently  Inducing  plaintiff  to  take  notes  of  a  corporation 
by  false  representations  of  Its  officers  as  to  the  amount  of  its  paid-up  capital 
stock  cannot  be  maintained  by  evidence  of  the  falsity  of  their  statement  of 
the  amount  of  paid-up  capital  stock  filed  with  the  state  commissioner. — Hun- 
newell  v.  Duxbury,  672. 

In  an  action  founded  on  fraud,  it  Is  necessary  to  prove,  not  only  that  the 
representations  were  fraudulently  made,  but  also  that  plaintiff  believed  and 
relied  upon  them. — Humphrey  v.  Merriam,  673. 

Plaintiff  is  not  entitled  to  recover  for  fraud  in  the  sale  of  mining  stock, 
where  it  appears  that  he  did  not  rely  on  the  statements  of  defendant,  but  in- 
terviewed other  persons  in  regard  to  the  mine  and  acted  on  the  information 
so  obtained. — Humphrey  v.  Merriam,  673. 

An  intent  to  deceive  is  a  necessary  element  of  fraud. — Humphrey  v.  Mer- 
riam, 673. 

FRAUDULENT  PURCHASE. 

Of  property  of  debtor  liable  to  attachment,  not  ground  of  action  by  creditor 
for  damages  for  the  fraud ;  the  remedy  being  by  suit  to  avoid  the  sale,  or  by 
attachment. — Lamb  v.  Stone,  17. 

GAS. 

Action  maintainable  for  Injuries  from  explosion  of  gas  against  defendants, 
by  whom  it  was  allowed  to  escape  into  plaintiff's  premises,  although  the  ex- 
plosion was  caused  by  negligence  of  a  third  person. — Clark  v.  Chambers,  105. 

GUNPOWDER. 

The  mere  keeping  of  gunpowder  in  dangerous  proximity  to  the  premises  of 
another  is  a  nuisance,  rendering  the  person  keeping  it  liable  for  injuries 
caused  by  its  explosion,  irrespective  of  the  question  of  his  negligence. — Heeg 
v.  Licht,  449. 

GUNS. 

Action  maintainable  for  personal  injuries  caused  by  discharge  of  gun  left, 
loaded  by  defendant's  negligence,  although  negligence  of  third  person  inter- 
vened as  immediate  cause  of  accident. — Clark  v.  Chambers,  102 ;    Thomas  v. 
Winchester,  161. 

Pointing  an  unloaded  gun  at  one  who  supposes  it  to  be  loaded,  although 
within  the  distance  it  would  carry  if  loaded,  is  not,  without  more,  an  assault 
punishable  criminally,  although  it  may  sustain  a  civil  action  for  damages. — 
Chapman  v.  State,  185. 

HIGHWAYS. 

Abutting  owner  entitled  to  injunction  to  compel  railroad  company  to  restore 
street  crossing. — Buchholz  v.  New  York,  L.  E.  &  W.  R.  Co.,  68. 

One  unlawfully  placing  dangerous  obstruction  in  public  highway  is  liable 
for  personal  injuries  thereby  occasioned  to  a  traveler,  although  the  immediate 
cause  of  the  accident  was  the  intervening  act  of  another. — Clark  v.  Cham- 
bers, 106. 


INDEX.  719 

Obstruction  of  passage  of  a  person  in  one  direction  only  along  a  portion  of 
a  public  highway,  he  being  free  to  go  in  another  direction,  does  not  amount 
to  an  imprisonment  for  which  he  can  maintain  an  action  for  false  imprison- 
ment— Bird  v.  Jones,  215. 

For  appropriation  of  soil  of  a  public  highway  trespass  lies  by  the  owner 
of  land  through  which  highway  passes. — Gidney  v.  Earl,  390. 

Obstruction  of  highway  an  excuse  for  entry  on  adjoining  land. — Newkirk 
v.  Sabler,  392 ;  Campbell  v.  Race,  409. 

That  the  injuries  were  caused  by  the  negligence,  in  covering  the  excavation, 
of  servants  of  contractors  for  that  work,  who  had  contracted  to  do  it  properly, 
does  not  relieve  from  liability  the  persons  who  procured  it  to  be  done,  and  did 
not  object  to  it,  and  continued  the  excavation  in  its  unsafe  condition,  they 
being  bound,  at  their  peril,  to  make  and  at  all  times  keep  the  street  as  safe 
as  it  would  have  been  if  the  excavation  had  not  been  made. — Congreve  v. 
Smith,  454. 

Persons  who,  without  authority,  make  or  continue  a  covered  excavation 
in  a  public  street  or  highway  for  a  private  purpose,  are  liable  for  all  injuries 
to.  individuals  resulting  from  the  street  or  highway  being  thereby  less  safe 
for  its  appropriate  use,  irrespective  of  the  question  of  negligence  In  those 
who  make  the  excavation. — Congreve  v.  Smith,  454. 

One  driving  too  fast  on  the  public  highway  is  liable  for  running  over  a  do- 
mestic animal  therein,  where  his  negligence  was  the  immediate  cause  of  the 
injury,  although  the  injured  animal  was  wrongfully  and  negligently  left  in 
the  highway  by  his  owner ;  the  latter's  negligence  being  only  remote. — Davies 
v.  Mann,  571. 

A  child  two  years  of  age,  who,  while  under  the  care  of  an  adult  sister,  goes 
upon  the  track  of  a  horse  railroad,  and  is  there  run  over  by  the  carelessness 
of  the  driver  of  a  car  thereon,  is  not  deprived  of  a  right  of  action  for  the  in- 
jury, although  the  sister's  carelessness  of  supervision  was,  in  part,  the  cause 
of  the  injury. — Newman  v.  Phillipsburg  Horse  Car  R.  Co.,  585. 

HOMICIDE. 

Self-defense  an  excuse,  where  the  person  assailed  had  reason  to  believe  that 
his  assailant  intended  to  do  him  great  bodily  harm,  and  that  he  was  in  dan- 
ger of  such  harm,  and  that  no  other  means  could  effectually  prevent  it— Com- 
monwealth v.  O'Malley,  200. 

HORSE  RAILROADS. 

See  "Street  Railroads." 

HORSES. 

Action  maintainable  for  personal  injuries  to  plaintiff  from  being  run  over 
on  the  street  by  horse  caused  to  run  away  by  fire  negligently  allowed  to  fall 
upon  him  from  locomotive  on  defendant's  elevated  railway.— Lowery  v.  Man- 
hattan Ry.  Co.,  88. 

Action  maintainable  for  injuries  caused  by  defendant's  horse,  left  unattond- 
ed  in  the  street,  although  immediate  cause  of  injury  was  the  intervening  act 
of  a  third  person.— Clark  y.  Chambers,  103 ;  Thomas  v.  Winchester,  Itil. 


720  INDEX. 

Action  maintainable  for  Injuries  caused  by  plaintiff's  horses  taking  fright 
at  a  stream  of  water  allowed  by  defendants  to  spout  up  in  the  road. — Clark 
v.  Chambers,  105. 

One  who  hires  a  horse  to  drive  to  a  particular  place,  and  drives  beyond  the 
place  or  in  another  direction,  is  liable  for  a  conversion. — Freeman  v.  Boland, 
508. 

HUMAN  LIFE. 

No  justification  admissible  where  life  of  one  person  has  been  lost  by  negli- 
gence of  another,  whether  by  negligent  act  or  negligent  omission  of  duty  of 
the  latter. — Thomas  v.  Winchester,  160. 

Negligence  cannot  be  imputed  by  law  to  a  person  in  his  effort  to  save  the 
life  of  another  in  extreme  peril,  unless  made  under  such  circumstances  as  to 
constitute  rashness  in  the  judgment  of  prudent  persons. — Eckert  v.  Long  Is- 
land R.  Co.,  600. 

HUSBAND  AND  WIFE 

Husband  may  recover  for  slander  of  wife,  causing,  as  a  natural  conse- 
quence, injury  to  him  by  loss  of  trade  and  custom  in  his  business. — Van  Horn 
v.  Van  Horn,  296. 

Action  maintainable  by  husband  for  loss  of  consortium  with  his  wife,  which 
is  implied  from  criminal  conversation  of  the  defendant  with  her,  whether  de- 
fendant's act  was  with  or  against  her  will,  and  although  it  may  have  caused 
no  actual  loss  of  her  services  to  her  husband. — Bigaouette  v.  Paulet,  550. 

ICE. 

Action  not  maintainable  for  Injuries  from  slipping  on  Ice  formed  In  street, 
against  one  who  allowed  the  water  forming  it  to  flow  into  the  gutter  without 
being  aware  of  an  obstruction  to  its  passing  into  the  sewer  which  caused  it 
to  spread  into  the  street  and  become  frozen. — Clark  v.  Chambers,  107. 

IMPLIED  CONTRACTS. 

The  owner  of  goods  wrongfully  taken  may  waive  the  tort  and  sue  on  an  Im- 
plied contract  of  sale. — Terry  v.  Hunger,  140. 

IMPRISONMENT. 

See  "False  Imprisonment" 

Includes,  besides  mere  loss  of  freedom  to  go  where  one  pleases,  restraint 
within  limits  defined  by  an  exterior  will  or  power. — Bird  v.  Jones,  216. 

Actual  violence  not  necessary  to  constitute. — Bird  v.  Jones,  216. 

Words  are  sufficient  to  constitute  imprisonment,  if  they  impose  a  restraint 
on  the  person. — Pike  v.  Hanson,  222. 

Municipal  corporation  cannot  enforce  obedience  to  its  by-laws  or  ordinan- 
ces by  imprisonment,  unless  expressly  authorized  so  to  do  by  statute. — Lynch 
v.  Metropolitan  El.  Ry.  Co.,  225. 


INDEX.  J21 

IMPUTED  NEGLIGENCE. 

In  cases  of  injuries  to  an  infant  of  tender  years,  received  through  the  neg- 
ligence of  others,  the  law  imputes  to  the  infant  the  negligence  of  its  parents. 
— Mangam  v.  Brooklyn  R.  Co.,  580. 

Though  negligence  of  parents  in  exposing  a  child  non  sui  juris  to  danger 
may  be  imputed  to  the  child,  still  if  the  child  has  not  committed  an  act  which 
would  constitute  negligence  in  a  person  of  years  of  discretion,  an  injury  by 
the  negligence  of  another  cannot  be  defended  on  the  alleged  negligence  of  the 
parents. — McGarry  v.  Looinis,  584. 

Where  a  child  four  years  old  was  injured  while  exercising  what  would  be 
regarded  as  ordinary  care  in  an  adult,  the  question  of  the  negligence  of  its 
parents  is  immaterial. — McGarry  v.  Looinis,  584. 

A  child  of  tender  years  is  not  chargeable  with  the  negligence  of  the  per- 
son having  him  in  charge. — Newman  v.  Phillipsburg  Horse  Car  R.  Co.,  588. 

One  who  hires  a  public  hack,  and  gives  directions  to  the  driver  as  to  the 
place  to  which  he  wishes  to  be  conveyed,  but  exercises  no  other  control  over 
him,  is  not  chargeable  with  the  negligence  of  such  driver. — Little  v.  Hackett, 
595. 

INDEMNITY. 

A  village  may  recover  from  an  abutting  owner  the  amount  which  it  is  com- 
pelled to  pay  a  person  injured  by  the  defective  condition  of  a  sidewalk  caused 
by  him. — Trustees  of  Village  of  Canandaigua  v.  Foster,  176. 

INDEPENDENT  CONTRACTORS. 

An  owner  of  real  estate  is  not  liable  for  the  negligence  of  a  contractor  or 
his  employe's  in  removing  rock  from  his  premises  by  blasting. — Berg  v.  Par- 
sons, 606. 

An  owner  of  real  estate  who  engages  a  contractor  to  remove  rock  from  his 
premises  is  not  liable  for  damages  caused  by  the  contractor's  negligence,  on 
the  theory  of  an  obligation  to  use  care  in  selecting  such  contractor. — Berg 
v.  Parsons,  606. 

INFANCY. 

Infant  may  recover  for  Injuries  from  dangerous  appliance  adjoining  a  pub- 
lic way,  although  received  while  trespassing. — Gramlich  v.  Wurst,  14;  Clark 
v.  Chambers,  104. 

To  render  an  infant  who  has  hired  a  horse  liable  for  trespass,  he  must  do 
some  positive  act  which  amounts  to  an  election  to  disaffirm  the  contract — 
Moore  v.  Eastman,  166. 

An  infant  of  six  is  liable  for  compensatory  damages  for  entering  premises 
of  another  and  destroying  shrubbery  and  flowers. — Huchting  v.  Engel,  163. 

Where  an  infant  who  has  hired  a  horse  willfully  and  intentionally  injures 
the  animal,  an  action  for  trespass  will  lie  for  the  tort,  but  not  if  the  injury 
occurred  through  unskillfulness. — Moore  v.  Eastman,  166. 
CHASE  (2o  ED.) — 46 


722  INDEX. 

An  Infant  who  falsely  represents  himself  to  be  of  age  and  Induces  another 
to  sell  him  goods  Is  not  liable  In  tort  for  so  obtaining  the  goods. — Slayton  v. 
Barry,  168. 

Corporal  punishment  of  pupil  by  teacher  to  enforce  compliance  with  proper 
rules  for  good  conduct  and  order  of  school  justifiable,  if  inflicted  with  sound 
discretion  and  judgment,  and  adapted  to  the  offender  as  well  as  to  the  offense. 
— Sheehan  v.  Sturges,  211. 

Infant  who  hires  a  horse  and  wagon  to  drive  to  a  particular  place,  and 
drives  beyond  such  place,  is  liable  for  a  conversion. — Freeman  v.  Boland,  508. 

A  child  of  such  tender  years  as  to  be  incapable  of  exercising  judgment  and 
discretion  cannot  be  charged  with  contributory  negligence. — Twist  v.  Winona 
&  St  P.  R.  Co.,  574. 

But  even  a  child  Is  bound  to  use  such  reasonable  care  as  one  of  his  age  and 
mental  capacity  is  capable  of  using,  and  his  failure  to  do  so  is  negligence. — 
Twist  v.  Winona  &  St.  P.  B.  Co.,  575. 

The  conduct  of  a  boy  nearly  10  years  old,  of  average  intelligence,  familiar 
in  a  general  way  with  the  working  of  a  railroad  turntable,  knowing  that  it 
was  dangerous  to  play  upon  it,  and  that  so  doing  was  forbidden  by  the  rail- 
road company,  and  having  been  warned  by  his  father  not  to  go  upon  it,  who 
nevertheless  engages  with  other  boys  in  swinging  upon  it  while  in  motion, 
and  is  injured  thereby,  is  such  contributory  negligence  as  will  defeat  a  recov- 
ery for  such  injury,  although  he  may  not  have  been  of  sufficient  age  and  dis- 
cretion to  understand  the  full  extent  of  the  danger. — Twist  v.  Winona  &  St. 
P.  R.  Co.,  575. 

An  infant  three  or  four  years  of  age  is  incapable  of  contributory  negligence. 
— Mangam  v.  Brooklyn  R.  Co.,  581. 

Where  a  child  four  years  old  was  injured  while  exercising  what  would  be 
•regarded  as  ordinary  care  in  an  adult,  the  question  of  the  negligence  of  its 
parents  is  immaterial. — McGarry  v.  Loomis,  584. 

A  child  two  years  of  age,  who,  while  under  the  care  of  an  adult  sister,  goes 
upon  the  track  of  a  horse  railroad,  and  is  there  run  over  by  the  carelessness 
of  the  driver  of  a  car  thereon,  is  not  deprived  of  a  right  of  action  for  the  in- 
jury, although  the  sister's  carelessness  of  supervision  was,  in  part,  the  cause 
of  the  injury. — Newman  v.  Phillipsburg  Horse  Car  R.  Co.,  585. 

A  child  of  tender  years  is  not  chargeable  with  negligence  of  the  person  hav- 
ing him  in  charge. — Newman  v.  Phillipsburg  Horse  Car  R.  Co.,  588. 

A  person  seeing  a  small  child  on  a  railroad  track  in  extreme  peril  from  a 
rapidly  approaching  train  owes  to  the  child  the  duty  to  rescue  it  if  he  can 
do  so  without  incurring  great  danger  to  himself,  and  the  law  will  not  impute 
negligence  to  an  effort  by  him  to  rescue  the  child,  unless  made  under  such 
circumstances  as  to  constitute  rashness  in  the  judgment  of  prudent  persons. 
— Eckert  v.  Long  Island  R.  Co.,  599. 

INJUNCTION. 

May  be  granted  to  restrain  repetition  or  continuance  of  injurious  act  which 
may  become  the  foundation  or  evidence  of  an  adverse  right. — Webb  v.  Port 
land  Manuf'g  Co.,  39. 

Abutting  owner  entitled  to  injunction  to  compel  railroad  company  to  re 
store  street  crossing. — Buchholz  v.  New  York,  L.  E.  &  W.  R.  Co.,  68. 


INDEX.  723 

Writ  of  injunction  not  a  matter  of  grace,  but  of  right,  in  a  proper  case; 
and  will  be  granted  to  restrain  irreparable  injury,  whether  it  be  to  the  enjoy- 
ment of  the  necessities  or  the  luxuries  of  life. — Campbell  v.  Seaman,  422. 

.  The  destruction  of  ornamental  and  useful  trees  and  vines  by  the  vapors 
and  gases  from  a  brickkiln  is  such  irreparable  injury  as  a  court  of  equity 
will  enjoin. — Campbell  v.  Seaman,  422. 

An  injunction  restraining  the  ringing  of  a  factory  bell,  used  to  notify  em- 
ploy6s,  before  a  certain  hour  in  the  morning,  does  not  give  a  vested  right  which 
the  Legislature  is  powerless  to  take  away  by  a  statute  legalizing  the  ringing 
of  such  bell  before  that  hour,  and  on  a  bill  of  review  in  such  case  the  injunc- 
tion will  be  dissolved. — Sawyer  v.  Davis,  473. 

INNKEEPERS. 

Cannot  detain  person  of  guest  to  secure  payment  of  bill. — Lynch  v.  Metro- 
politan El.  Ry.  Co.,  224. 

To  say  of  a  keeper  of  a  house  of  public  entertainment  that  he  is  a  "dan- 
gerous man,"  a  "desperate  man,"  and  that  the  speaker  is  "afraid  to  go  in  his 
house  alone,"  is  not  ground  for  an  action  of  slander,  as  affecting  such  person 
in  his  business,  since  the  words  do  not  relate  to  his  business  character,  or 
charge  any  delinquency  in  his  business. — Ireland  v.  McGarvish,  318. 

INSANITY. 

The  estate  of  a  lunatic  Is  responsible  in  damages  for  his  tortlous  acts. — 
Mclntyre  v.  Sholty,  123. 

Not  ground  of  exemption  from  liability  for  tort. — Morain  v.  Devlin,  126. 
Defense  to  crime. — Morain  v.  Devlin,  126. 

Publication  in  newspaper  of  statement  imputing  insanity  to  a  teller  In  a 
bank,  libelous  per  se,  as  tending  to  injure  him  in  his  employment — Moore  v. 
Francis,  335. 

INSURANCE. 

Insurance  company  has  no  right  of  action  against  the  person  who  felonious- 
ly or  negligently  causes  the  death  of  a  person  insured  by  it,  the  loss  thereby 
caused  the  company  being  too  remote  and  indirect — Mobile  Life  Ins.  Co.  v. 
Brame,  625. 

INTENT. 

One  who  does  an  Illegal  or  mischievous  act,  likely  to  prove  Injurious  to 
others,  is  answerable  for  the  consequences  directly  and  naturally  resulting 
therefrom,  although  he  did  not  intend  to  do  the  particular  injury  which  fol- 
lowed.— Vandenburgh  v.  Truax,  85. 

Wrongful  intent  not  necessary  to  constitute  tort  in  cases  of  trespass. — Bes- 
sey  v.  Olliot,  118;  Guille  v.  Swan,  120;  Hobart  v.  Hagget,  491;  Dexter  v. 
Cole,  492. 

Wrongful  intent  necessary  to  constitute  tort,  in  cases  of  fraud,  malicious 
prosecution,  etc. — Guille  v.  Swan,  121,  note. 


724  INDEX. 

The  rule  that  there  can  be  no  contribution  among  wrongdoers  applies  only 
to  cases  where  there  has  been  an  intentional  violation  of  law. — Bailey  v.  Bus- 
sing, 174. 

Present  intention,  as  well  as  present  ability,  to  use  violence  against  the 
person  of  another,  necessary  to  constitute  criminal  assault. — Chapman  v. 
State,  186. 

Words  accompanying  menacing  acts  and  indicating  that  there  is  no  intent 
to  do  actual  violence  may  be  considered  on.  the  question  whether  such  acts 
constitute  an  assault — State  v.  Crow,  190. 

For  a  conviction  of  mayhem  for  an  injury  during  a  conflict,  it  is  not  neces- 
sary that  the  accused  should  have  formed  the  intent  before  engaging  in  the 
conflict — Barholt  v.  Wright,  196. 

Nor  in  cases  of  conversion  of  personal  property. — Laverty  v.  Snethen,  499. 

In  an  action  of  deceit,  if  fraud  be  proved,  the  motive  of  the  person  guilty 
of  it  is  immaterial ;  it  matters  not  that  there  was  no  intention  to  cheat  or  in- 
jure the  person  to  whom  the  statement  was  made. — Derry  v.  Peek,  637. 

An  intent  to  deceive  is  a  necessary  element  of  fraud  and  deceit — Humphrey 
v.  Merriam,  673. 

JOINT  TENANCY  AND  TENANCY  IN  COMMON. 

Trespass  is  maintainable  by  one  tenant  in  common  against  another,  upon 
an  actual  ouster. — Murray  v.  Hall,  403. 

Sale  and  delivery,  by  one  tenant  in  common  of  personal  property,  of  the 
entire  property  as  exclusively  his  own,  is  a  conversion,  for  which  his  co-tenant 
can  maintain  trover. — Weld  v.  Oliver,  515. 

JOINT  TORT  FEASORS. 

Personal  privilege  from  civil  action  of  one  of  two  joint  wrongdoers  does 
not  exempt  the  other  from  liability. — Rice  v.  Coolidge,  27. 

The  liability  for  torts  is  joint  and  several. — Kirby  v.  President,  etc.,  of  Del- 
aware &  H.  Canal  Co.,  170. 

No  apportionment  of  damages  between. — Keegan  v.  Hayden,  171. 

The  rule  that  there  can  be  no  contribution  among  wrongdoers  applies  only 
to  cases  where  there  -has  been  an  intentional  violation  of  the  law,  or  where 
the  wrongdoer  is  to  be  presumed  to  have  known  that  the  act  was  unlawful. 
— Bailey  v.  Bussing,  174. 

Release  of  one  joint  tort-feasor  releases  the  others. — Gunther  v.  Lee,  179. 

In  a  release  to  one  of  several  joint  tort-feasors,  a  proviso  that  the  right  to 
recover  against  the  other  shall  not  be  affected  is  void. — Gunther  v.  Lee,  180. 

Parties  advising  or  aiding  in  committing  trespass  are  liable,  though  not 
personally  present  at  the  time  of  its  commission. — Bell  v.  Miller,  181. 

JUDGES. 

Judge  not  liable  to  action  for  false  imprisonment  for  awarding  a  capias 
upon  affidavits  which  do  not  disclose  a  sufficient  cause  for  arrest — Fischer  v. 
Langbein,  244. 


INDEX.  725 

Judges  of  courts  of  superior  or  general  jurisdiction  not  liable  to  civil  ac- 
tions for  their  judicial  acts,  even  when  such  acts  are  in  excess  of  their  juris- 
diction, and  are  alleged  to  have  been  done  maliciously  or  corruptly ;  although 
there  is  no  such  exemption  where  there  is  clearly  no  jurisdiction  over  the 
subject-matter,  and  such  want  of  jurisdiction  is  known  to  the  judge. — Brad- 
ley v.  Fisher,  531. 

Where  a  court  has  power  to  make  an  order  striking  the  name  of  an  attor- 
ney from  the  roll  of  attorneys  practicing  in  the  court,  error  in  not  citing  the 
attorney,  before  making  such  an  order,  to  show  cause  why  it  should  not  be 
made,  however  it  may  affect  the  validity  of  the  act,  does  not  make  it  any  the 
less  a  judicial  act,  nor  does  it  render  the  judge  making  the  order  liable  in 
damages  to  the  attorney,  as  though  the  court  had  proceeded,  without  juris- 
diction.— Bradley  v.  Fisher,  534. 

JUDGMENT. 

Any  person  not  a  party  to  a  former  action  and  not  In  privity  with  a  party 
may,  in  a  collateral  action,  impeach  the  judgment. — Rice  v.  Coolidge,  27. 

Entry  of  judgment  in  .favor  of  plaintiff  in  action  for  conversion  does  not 
transfer  title  to  defendant — Miller  v.  Hyde,  524. 

JURISDICTION. 

A  judicial  officer  having  general  powers  is  responsible  for  causing  an  ar- 
rest in  all  cases  over  which  he  has  cognizance,  unless  the  case  is  by  complaint 
or  other  proceeding  put  colorably  under  his  jurisdiction. — Grove  v. -Van  Duyn, 
233. 

Person  making  swdrn  complaint  before  a  justice  is  not  liable  for  unlawful 
imprisonment,  even  if  acts  of  justice  were  extrajudicial. — Grove  v.  Van  Duyu, 
233. 

Complaint  insufficient  to  give  justice  jurisdiction,  so  as  to  relieve  him  from 
liability  in  issuing  warrant  thereon. — Grove  v.  Van  Duyn,  233. 

Power  of  court  to  entertain  jurisdiction  of  an  action  or  proceeding  does 
not  depend  upon  the  existence  of  a  substantial  cause  of  action,  but  upon  the 
performance  by  the  party  of  the  prerequisites  authorizing  it  to  determine 
whether  one  exists  or  not. — Fischer  v.  Langbeiu,  244. 

Order  or  process  based  on  a  decision  of  the  court,  involving  the  exercise  of 
the  judicial  function,  although  afterwards  set  aside  as  erroneous,  is  not  void, 
and  does  not  subject  the  party  procuring  it  to  an  action  for  damages  thereby 
inflicted. — Fischer  v.  Langbein,  245. 

Public  officer  not  liable  to  civil  action  for  a  judicial  determination,  however 
erroneous  or  malicious,  if  he  had  jurisdiction  of  the  case,  and  was  authorized 
to  determine  it — Bradley  v.  Fisher,  206;  Weaver  v.  Devendorf,  525. 

JUSTICES  OF  THE  PEACE. 

Justice  issuing  warrant  for  arrest  of  person  on  charge  of  crime,  without 
jurisdiction,  liable  for  false  imprisonment. — Blodgett  v.  Race,  227. 

Complaint  insufficient  to  give  justice  jurisdiction,  so  as  to  relieve  him  from 
liability  in  issuing  warrant  thereon. — Grove  v.  Van  Duyn,  233. 


726  INDEX. 


JUSTIFICATION. 

Self-defense  a  Justification  of  assault  and  battery. — Scribner  r.  Beach,  197; 
Commonwealth  v.  O'Malley,  200. 

Words  and  insult  will  not  justify  an  assault. — Daniel  v.  Giles,  204. 

In  an  action  of  assault,  evidence  of  insults  occurring  three  hours  before 
the  time  of  the  alleged  assault  is  inadmissible. — Dupee  v.  Lentine,  206. 

The  truth  of  the  charge  that  a  man  had  the  venereal  disease  is  a  justifica- 
tion, in  an  action  for  slander  by  speaking  words  imputing  such  charge. — Gold- 
erman  v.  Stearns,  313. 

In  civil  actions  for  libel,  proof  of  the  truth  of  the  matter  charged  as  de- 
famatory is  a  complete  justification,  without  sho\ving  that  it  was  published 
with  good  motives,  and  for  justifiable  ends. — Castle  v.  Houston,  350. 

A  charge  of  being  a  thief  cannot  be  justified  by  showing  that  the  person 
accused  is  guilty  of  cheating,  fraud,  or  false  pretenses. — Youngs  v.  Adams, 
352. 

Justification  for  libel  must  be  as  broad  as  the  libel. — Stilwell  v.  Barter,  353. 

The  speaking  of  defamatory  words  is  justified  by  a  privileged  occasion 
therefor,  although  the  communication  was  made  voluntarily,  if  it  was  made 
in  good  faith,  without  malice,  in  the  honest  belief  of  its  truth,  and  under  the 
conviction  that  it  was  a  duty  to  make  it — Fresh  v.  Cutter,  356. 

KNOWLEDGE. 

To  support  an  action  of  deceit  for  making  a  false  representation,  knowledge 
by  defendant  of  its  falsity  is  not  always  necessary. — Derry  y.  Peek,  636 ; 
Litchfield  v,  Hutchinson,  643. 

LACHES. 

May  be  a  bar  to  equitable  relief  against  nuisance. — Campbell  v.  Seaman, 
423. 

LANDLORD   AND  TENANT. 

Owner  of  building  letting  rooms  in  it,  with  right  to  tenant  to  go  upon  roof 
of  extension  to  dry  clothes,  not  liable  for  injuries  to  visitor  of  tenant  received 
by  falling  from  window  of  latter's  rooms  through  unprotected  skylight  in 
roof  of  extension. — Miller  v.  Woodhead,  9. 

Failure  of  owner  of  tenement  house  to  comply  with  statute  requiring  fire 
escapes  to  be  provided  therefor  is  a  breach  of  duty  for  which  he  is  liable  to 
a  tenant  for  damages  thereby  caused  to  the  latter. — Willy  v.  Mulledy,  30. 

Owner  of  premises  having  so  constructed  a  cesspool  thereon  that  the  offen- 
sive matter  deposited  in  it  by  his  tenants  necessarily  percolates  through  to 
the  adjoining  premises  is  liable  equally  with  the  tenants  for  the  injury  to  the 
adjoining  occupant. — Fow  v.  Roberts,  457. 

A  tenant  for  years  is  not  liable  for  keeping  a  nuisance  as  it  was  used  before 
his  tenancy  commenced,  in  the  absence  of  a  request  to  remove  it,  if  he  does 
no  new  act  of  itself  amounting  to  a  nuisance. — McDonough  v.  Oilman,  460. 


INDEX.  727 

A  tenant  for  years,  who  restores  a  nuisance  to  a  right  of  way  after  the 
same  has  been  abated,  is  liable  therefor,  although  the  same  existed  before  his 
tenancy ;  but  merely  repairing  it  after  it  was  injured,  but  not  abated,  will 
not  make  him  liable,  if  it  does  not  become  more  of  a  nuisance  thereby. — Mc- 
Donough  v.  Oilman,  460. 

The  notice  to  a  tenant,  to  remove  a  nuisance  which  is  kept  by  him  in  the 
manner  in  which  it  existed  when  his  tenancy  commenced,  without  any  act 
on  his  part  amounting  in  itself  to  a  nuisance,  must  be  clear  and  unequivocal, 
to  make  him  liable  for  the  continuance. — McDonough  v.  Oilman,  462. 

The  owner  of  personal  property  leased  to  another  cannot  maintain  trover 
for  a  conversion  pending  the  demise. — Gordon  v.  Harper,  511. 

LANDMARK. 

Removal,  when  made  a  statutory  offense,  involves  moral  turpitude. — Young 
v.  Miller,  302. 

LARCENY. 

A  statement  that  plaintiff  had  her  hogs  in  another's  corn,  and  carried  corn 
away,  is  not  actionable  without  special  damage. — Stitzell  v.  Reynolds,  380. 


LATERAL  SUPPORT. 

Where  lateral  support  of  soil  is  removed,  owner  entitled  to  recover  for  loss 
of  and  injury  to  soil,  not  for  cost  of  restoring  it  or  difference  in  market  price. 
— Gilmore  v.  Driscoll,  50. 

Injuries  to  adjoining  property  caused  by  excavations  in  mining  accrue  at 
time  of  injury,  and  not  at  time  of  excavation. — Bonomi  v.  Backhouse,  66. 

LEASES. 

See  "Landlord  and  Tenant.** 

LEGAL  RIGHTS. 

Violation  of  moral  right  or  duty  does  not  constitute  tort. — Guest  v.  Reyn- 
olds, 4 ;  Miller  v.  Woodhead,  7 ;  Gramlich  v.  Wurst,  9. 

Violation  necessary  to  constitute  tort. — Guest  v.  Reynolds,  4;  Miller  v. 
Woodhead,  7 ;  Gramlich  v.  Wurst,  9 ;  Rich  v.  New  York  Cent  &  H.  R.  R.  Co., 
146. 

May  be  established  by  common  law,  in  cases  of  novel  impression. — Rice  v. 
Coolidge,  28. 

Action  maintainable  for  violation  of  legal  rights  created  by  statute. — Willy 
v.  Mulledy,  30. 

No  right  of  action  for  negligence  unless  there  is  a  violation  of  legal  duty. 
— Larmore  v.  Crown  Point  Iron  Co.,  556. 


728  INDEX. 

LEX  LOCI. 

See  "Conflict  of  Laws." 

LIBEL 

See  "Slander." 

Action  for  libel  concerning  plaintiff's  property  not  maintainable  without 
proof  of  special  damage. — Gott  v.  Pulsifer,  70. 

Where  special  damage  from  false  publication  concerning  statue  was  loss  of 
its  sale,  evidence  of  its  value  as  scientific  curiosity  is  immaterial. — Gott  v. 
Pulsifer,  70. 

To  show  actual  malice  in.  publication  of  statement  concerning  statue,  direct 
proof  of  intention  to  injure  its  value  is  not  necessary. — Gott  v.  Pulsifer,  70. 

Action  may  be  maintainable  for  publishing  defamatory  words  by  writing 
or  printing,  although  they  would  not  have  been  actionable  if  spoken  merely. 
—Tillson  v.  Robbins',  329 ;  Moore  v.  Francis,  333. 

Action  maintainable  for  the  publication,  by  writing  or  printing,  of  a  charge 
such  as,  if  believed,  would  naturally  tend  to  expose  a  person  to  public  hatred, 
contempt,  or  ridicule,  or  to  deprive  him  of  the  benefits  of  public  confidence 
and  social  intercourse,  without  allegations  of  special  damage,  or  of  any  fact 
to  make  such  publication  import  a  charge  of  crime. — Tillson  v.  Robbins,  330. 

In  a  civil  action  for  libel  in  the  state  of  New  York,  where  the  publication 
is  admitted,  and  the  words  are  unambiguous,  the  question  of  libel  or  no  libel 
is  one  of  law,  which  the  court  must  decide. — Moore  v.  Francis,  332. 

Publication  in  a  newspaper  of  a  statement  imputing  insanity  to  a  teller 
in  a  bank,  libelous  per  se,  as  tending  to  injure  him  in  his  employment. — Moore 
v.  Francis,  335. 

It  is  not  a  legal  excuse  that  defamatory  matter  was  published  accidentally 
or  inadvertently  or  with  good  motives,  and  in  an  honest  belief  in  its  truth. — 
Moore  v.  Francis,  335. 

Action  not  maintainable  for  a  publication  in  a  newspaper  of  a  notice  to  the 
public  that  a  saloonkeeper,  to  get  rid  of  a  just  claim  in  court,  set  up  as  a 
defense  an  existing  prohibitory  liquor  law,  under  which  no  action  for  the 
price  of  liquors  sold  in  violation  of  the  provisions  thereof  could  be  maintain- 
ed.— Homer  v.  Engelhardt,  336. 

Where  a  letter,  containing  defamatory  matter,  is  dictated  by  the  author  to 
a  clerk,  who  takes  it  down  in  shorthand,  and  then  writes  it  out  in  full  by 
means  of  a  typewriting  machine,  and  the  letter  thus  written  is  copied  by  an- 
other clerk  in  a  copying  press,  there  is  a  publication  of  the  letter  to  both ; 
and  the  occasion  is  not  privileged. — Pullman  v.  Walter  Hill  &  Co.,  343. 

And  where  such  letter,  addressed  to  a  firm,  is  sent  by  the  author  in  an  en- 
velope addressed  to  the  firm,  and  is  opened  by  a  clerk  of  the  firm,  in  the  or- 
dinary course  of  business,  and  read  by  other  clerks  of  the  firm,  there  is  a 
publication  of  the  letter  to  such  clerks ;  and  the  occasion  is  not  privileged. — 
Pullman  v.  Walter  Hill  &  Co..  343. 

In  civil  actions,  proof  of  the  truth  of  the  matter  charged  as  defamatory  is 
a  complete  justification,  without  showing  that  it  was  published  with  good 
motives,  and  for  justifiable  ends. — Castle  v.  Houston,  350. 


INDEX.  729 

The  rule  Is  not  changed  by  the  provision  of  the  Constitution  of  Kansas  (Bill 
of  Rights,  §  11)  that,  "in  all  civil  or  criminal  actions  for  libel,  the  truth  may 
be  given  in  evidence  to  the  jury,  and,  if  it  shall  appear  that  the  alleged  libel- 
ous  matter  was  published  for  justifiable  ends,  the  accused  party  shall  be  ac- 
quitted," as  the  requirement  of  proof  that  the  matter  was  published  for  jus- 
tifiable ends,  in  order  that  "the  accused  party  shall  be  acquitted,"  was  lim- 
ited to  criminal  prosecutions. — Castle  v.  Houston,  350. 

A  charge  of  smuggling  goods  into  the  country  is  libelous. — Stilwell  v.  Bar- 
ter, 352. 

A  charge  that  a  party  has  been  actively  engaged  in  smuggling  during  the 
war  is  not  justified  by  proof  that  he  had  violated  the  revenue  laws  in  a  single 
instance  previous  to  the  war  and  in  a  time  of  peace. — Stilwell  v.  Barter,  353. 

Justification  for  libel  must  be  as  broad  as  the  libel. — Stilwell  v.  Barter,  353. 

Whether  a  libelous  communication  is  privileged  is  a  matter  of  law. — Byam 
v.  Collins,  359. 

A  libelous  letter  to  an  unmarried  woman  concerning  her  suitor,  not  written 
at  her  request,  but  appearing  to  have  been  written  at  the  instance  of  mutual 
friends,  for  the  purpose  of  preventing  her  marriage  to  him,  is  not  privileged 
by  reason  of  previous  friendship,  nor  by  reason  of  a  request  made  four  years 
before,  and  before  the  acquaintance  of  the  suitor  was  made,  for  information 
of  anything  known  to  the  writer  concerning  any  young  man  the  person  ad- 
dressed "went  with,"  or  any  young  man  in  the  place. — Byam  v.  Collins,  362. 

Proprietors  of  a  mercantile  agency,  whose  business  is  collecting  and  com- 
municating to  subscribers  information  as  to  the  character,  credit,  and  pecun- 
iary responsibility  of  merchants,  are  liable  for  a  false  and  injurious  report 
of  the  failure  of  certain  merchants,  published  and  circulated  among  all  the 
subscribers,  as  such  a  communication  is  privileged  only  when  made  in  good 
faith,  to  one  having  an  interest  in  the  information. — Sunderlin  v.  Bradstreet, 
365. 

That  such  libelous  statement  was  in  cipher,  understood  by  the  subscribers 
only,  is  not  a  defense  to  an  action  for  libel. — Sunderlin  v.  Bradstreet,  368. 

A  newspaper  article,  charging  a  candidate  for  office  with  forgery,  stealing, 
and  cheating,  not  privileged,  even  if  published  with  belief  in  its  truth. — Bron- 
son  v.  Bruce,  369. 

The  qualifications  and  acts  of  public  officers  and  candidates  for  office  may 
be  freely  commented  upon,  if  the  comment  be  bona  fide  and  without  malice. 
— Bronson  v.  Bruce,  371. 

False  charges  of  crime  against  a  candidate  for  office,  though  made  without 
malice  and  in  an  honest  belief  of  their  truth,  are  not  privileged. — Bronson  v. 
Bruce,  372. 

Information  given  to  the  governor  of  the  state  for  the  purpose  of  influencing 
his  action  on  a  bill  which  has  passed  the  legislature  is  prirna  facie  privileged, 
but  if  the  communication  contains  defamatory  matter,  and  is  unnecessarily 
published  to  others,  such  publication  is  not  privileged. — Woods  v.  Wiman,  375. 

As  to  libelous  charges  in  pleadings,  affidavits,  or  other  papers  used  in  the 
course  of  the  prosecution  or  defense  of  an  action,  the  privilege  is  absolute, 
however  malicious  the  intent,  or  however  false  the  charge  may  have  been. — 
Moore  v.  Manufacturers'  Nat.  Bank,  377. 

But  the  privilege  does  not  extend  to  slanderous  publications  plainly  irrele- 
vant and  impertinent,  voluntarily  made,  and  which  the  party  making  them 


730  INDEX. 

could  not  reasonably  have  supposed  to  be  relevant. — Moore  v.  Manufacturers' 
Nat  Bank,  378. 

LICENSES. 

By  landlord  to  tenant  to  go  upon  roof  adjoining  demised  premises  for  pur- 
pose of  drying  clothes,  does  not  extend  to  visitor  to  tenant  not  using  the  roof 
for  such  purpose. — Miller  v.  Woodhead,  8. 

Legal  license  conferred  by  process  to  enter  house  for  purpose  of  service  on 
person  within  the  house. — Hager  v.  Danforth,  213. 

If  the  owner  of  land  sells  chattels  thereon,  the  vendee  thereby  obtains  an 
implied  license  to  enter  on  the  premises  and  remove  the  property ;  and  such 
license  is  not  revocable. — Newkirk  v.  Sabler,  392 ;  Giles  v.  Simonds,  405. 

The  abuse  of  a  license  to  enter  premises  given  by  law  makes  the  party  a 
trespasser  ab  initio ;  but  otherwise  where  the  license  to  enter  was  by  the  per- 
son in  possession. — Six  Carpenters'  Case,  401. 

A  verbal  contract  by  the  owner  of  land  for  the  sale  of  trees  standing  there- 
on, to  be  cut  and  removed  by  the  purchaser,  gives  the  latter  an  implied  license 
to  enter  for  that  purpose ;  but  such  license  is  revocable  at  any  time,  except 
as  to  an  entry  for  the  purpose  of  removing  trees  cut  before  the  revocation. — 
Giles  v.  Simonds,  406. 

Duty  of  keeping  premises  in  a  safe  condition,  even  as  to  a  mere  licensee, 
may  arise  where  affirmative  negligence  in  the  management  of  the  property 
or  business  of  the  owner  would  be  likely  to  subject  the  licensee  to  great  dan- 
ger.— Larmore  v.  Crown  Point  Iron  Co.,  556. 

LIENS. 

Action  maintainable  for  tortious  acts  by  which  lien  of  creditor  on  property 
of  debtor  is  destroyed  or  defeated. — Lamb  v.  Stone,  20. 

LIGHT  AND  AIR. 

Not  subjects  of  property  beyond  moment  of  actual  occupancy. — Guest  v. 
Reynolds,  4. 

Obstruction  of  access  by  owner  of  adjoining  land  not  ground  of  action  un- 
less adverse  right  thereto  has  been  acquired. — Guest  v.  Reynolds,  4. 

English  doctrine  of  prescription  for  easement  of  light  and  air  not  applicable 
in  Illinois. — Guest  v.  Reynolds,  4. 

LIMITATION  OF  ACTIONS. 

Injuries  to  adjoining  property  caused  by  excavations  in  mining  accrue  at 
time  of  injury,  and  not  at  time  of  excavation. — Bonomi  v.  Backhouse.  66. 

LOANS. 

Action  of  trespass  maintainable  by  owner  of  personal  property  loaned  to 
another  for  destruction  of  it  by  third  person,  while  in  possession  of  borrower. 
—White  v.  Brantley,  489. 


INDEX.  731 

One  who,  having  no  knowledge  of  the  ownership  of  property,  borrows  It  of 
a  person  having  possession  thereof,  and,  after  using  It,  returns  it  again  to 
him,  supposing  him  to  be  the  owner,  is  not  liable  for  a  conversion  in  an  action 
by  the  true  owner. — Frome  v.  Dennis,  507. 

Under  such  circumstances,  the  failure  of  the  borrower  to  deliver  the  prop- 
erty to  the  owner,  upon  demniul  hy  him  after  it  has  been  returned  to  the 
lender,  is  not  evidence  of  a  conversion. — Frome  v.  Dennis,  507. 

LUNATICS. 

See  "Insanity." 

MACHINERY. 

Leaving  a  dangerous  machine  in  a  public  place  without  precaution  against 
mischief  constitutes  negligence,  although  the  imprudent  and  unauthorized  act 
of  another  may  be  necessary  to  realize  such  mischief. — Clark  v.  Chambers, 
108. 

MALICE. 

To  show  actual  malice  In  publication  of  statement  concerning  statue,  direct 
proof  of  intention  to  injure  its  value  is  not  necessary. — Gott  v.  Pulsifer,  70. 

A  person  who  maliciously  induces  another  to  break  a  contract  made  by  the 
latter  with  an  employer  for  his  exclusive  personal  services,  where  such  breach 
would  naturally  cause,  and  does,  in  fact,  cause,  injury  to  the  employer,  is 
liable  to  the  employer  therefor. — Bowen  v.  Hall,  113. 

Malice  in  fact,  in  a  legal  sense,  denotes  any  unlawful  act  done  willfully  and 
purposely,  »to  the  prejudice  and  injury  of  another ;  it  does  not  necessarily  in- 
volve malevolence  or  ill  will  towards  the  plaintiff. — Pullen  v.  Glidden,  265. 

Malice  in  law  is  such  malice  as  is  inferred  from  the  commission  of  an  act 
wrongful  in  itself,  without  justification  or  excuse. — Pullen  v.  Glidden,  265. 

Gravamen  of  action  for  combination  or  conspiracy,  by  fraudulent  and  ma- 
licious acts,  to  drive  a  trader  out  of  business,  resulting  in  damages,  is  the 
malice,  not  the  conspiracy. — Van  Horn  v.  Van  Horn,  295. 

Malice  in  law  is  inferred,  ordinarily,  from  the  speaking  of  slanderous  words, 
wrongfully  and  intentionally ;  but  where,  on  account  of  the  cause  of  speak- 
ing, it  is  prima  facie  excusable,  malice  in  fact  must  be  proved  by  plaintiff. 
— Bromage  v.  Prosser,  338. 

Malice,  in  common  acceptation,  means  ill  will  against  a  person ;  but  in  its 
legal  sense  it  means  a  wrongful  act,  done  intentionally,  without  just  cause 
or  excuse. — Bromage  v.  Prosser,  338. 

Actual  malice  makes  defamatory  words  actionable,  although  spoken  on  a 
privileged  occasion. — Fresh  v.  Cutter,  355. 

Malice  is  implied  as  well  from  oral  as  from  written  defamation,  where  the 
communication  is  not  privileged. — Byam  v.  Collins,  358. 

MALICIOUS  PROSECUTION. 

See  "False  Imprisonment" 

Making  a  complaint  to  a  magistrate  does  not  render  complainant  liable  In 
trespass  for  acts  done  under  a  warrant  issued  by  the  magistrate,  even  if  tlie 
magistrate  has  no  jurisdiction. — Barker  v.  Stetson,  235. 


732  INDEX. 

Where  there  Is  no  conflict  In  the  evidence  In  actions  for  malicious  prosecu- 
tion, the  question  of  probable  cause  is  one  of  law. — Burns  v.  Erben,  251. 

The  essential  elements  of  an  action  for  malicious  prosecution  consist  of  a 
previous  unfounded  prosecution  of  the  plaintiff  by  the  defendant,  commenced 
without  probable  cause,  conducted  with  malice,  and  terminating  favorably  to 
the  party  prosecuted. — Miller  v.  Milligan,  261. 

Where  plaintiff  fails  to  show  that  defendant  was  the  real  prosecutor  In  the 
former  suit,  or,  if  so,  that  he  was  without  evidence  or  circumstances  justify- 
ing a  reasonable  suspicion  of  the  truth  of  the  charge,  the  complaint  may  prop- 
erly be  dismissed. — Miller  v.  Milligan,  2G2. 

Want  of  probable  cause  for  the  former  suit  and  malice  must  concur,  and 
the  former  cannot  be  inferred  from  any  degree  of  malice  which  may  be  shown. 
—Miller  v.  Milligan,  262. 

In  actions  for  malicious  prosecution,  the  essential  elements  are  malice  and 
want  of  probable  cause  in  the  proceedings  complained  of. — Hobbs  v.  Ray,  264. 

The  remedy  for  an  arrest  under  lawful  process  wrongfully  obtained  is  by 
action  for  malicious  prosecution. — Hobbs  v.  Ray,  264. 

To  sustain  an  action  for  malicious  prosecution,  malice  in  fact  must  be 
shown,  as  distinguished  from  malice  in  law,  which  is  established  by  legal  pre- 
sumption from  proof  of  certain  facts. — Pullen  v.  Glidden,  265. 

But  plaintiff  is  not  required  to  prove  "express  malice,"  in  the  popular  sig- 
nification of  the  term,  as,  that  defendant  was  prompted  by  malevolence,  or 
acted  from  motives  of  ill  will,  resentment,  or  hatred  towards  plaintiff.  It  is 
sufficient  that  he  prove  malice  in  the  legal  sense  in  which  an  act  done  willfully 
and  purposely,  to  the  prejudice  and  injury  of  another,  which  is  unlawful,  is, 
as  against  that  person,  malicious. — Pullen  v.  Glidden,  265. 

Plaintiff  must  prove,  not  only  express  malice  on  the  part  of  defendant,  but 
absence  of  probable  cause  for  the  prosecution. — Foshay  v.  Ferguson,  2G8. 

If  defendant,  in  an  action  for  malicious  prosecution,  had,  at  the  time  he 
made  the  criminal  charge  against  plaintiff  for  which  the  latter  brings  the 
action,  sufficient  grounds  for  believing  that  plaintiff  was  guilty  of  the  offense 
charged,  such  probable  cause  is  a  defense  to  the  action,  although  the  defend- 
ant may  previously  have  agreed  with  plaintiff  not  to  prosecute,  and  the  com- 
plaint may  have  been  afterwards  made  from  a  malicious  feeling  towards 
plaintiff. — Foshay  v.  Ferguson,  269. 

One  causing  the  arrest  of  an  innocent  person  on  a  criminal  charge  is  not 
exempted  from  liability  therefor  by  a  groundless  suspicion,  unwarranted  by 
the  conduct  of  the  accused  or  by  facts  known  to  the  accuser  when  the  accusa- 
tion was  made. — Carl  v.  Ayers,  271. 

Proof  that  defendant  in  an  action  for  malicious  prosecution  submitted  all 
the  facts  of  the  case  which  he  knew  were  capable  of  proof  fairly  to  his  coun- 
sel, and  acted  bona  fide  on  the  advice  given,  negatives,  if  not  the  malice,  the 
want  of  probable  cause,  even  though  the  facts  did  not  warrant  the  advice  and 
the  prosecution. — Walter  v.  Sample  273. 

Action  maintainable  for  prosecution  of  civil  action  maliciously  and  without 
probable  cause ;  at  least,  where  there  has  been  deprivation  of  liberty  or  tak- 
ing of  property. — Cardival  v.  Smith,  275. 

Failure  of  plaintiff  in  civil  action,  after  procuring  arrest  of  defendant  on 
the  writ  therein,  to  have  the  writ  returned,  or  to  appear  at  the  court  to  which 


INDEX.  733 

It  is  returnable,  Is  a  final  determination  of  the  action,  such  that  the  defend- 
ant may  maintain  an  action  for  malicious  prosecution. — Cardival  v.  Smith, 
275. 

The  entry  of  a  nolle  prosequi  in  a  criminal  case  is  a  sufficient  determina- 
tion of  the  proceedings  to  entitle  accused  to  maintain  an  action  for  malicious 
prosecution. — Woodman  v.  Prescott,  279. 

An  action  will  not  lie  for  the  malicious  prosecution  of  a  civil  suit  without 
probable  cause,  where  the  process  in  such  suit  was  by  a  summons  only,  and 
not  accompanied  by  arrest  of  the  person  or  seizure  of  property,  or  other  spe- 
cial injury  not  necessarily  resulting  in  all  suits  prosecuted  to  recover  for  like 
causes  of  action. — Smith  v.  Michigan  Buggy  Co.,  281. 

Action  will  lie  to  recover  for  injuries  to  reputation  and  business,  caused  by 
malicious  prosecution  of  a  civil  action  without  probable  cause,  in  which  a 
complaint  was  filed  containing  false  and  defamatory  matter. — Wade  v.  Na- 
tional Bank  of  Commerce  of  Tacoma,  285. 

An  action  for  maliciously  suing  out  an  excessive  attachment  may  be  brought 
before  the  termination  of  the  attachment  suit,  where  the  validity  of  the  debt 
on  which  the  attachment  issued  is  not  in  dispute. — Zinn  v.  Rice,  288. 

Action  for  malicious  abuse  of  process  in  order  illegally  to  compel  a  party 
to  give  up  his  property  may  be  sustained  without  showing  that  the  previous 
action,  in  which  the  process  was  improperly  employed,  has  been  determined, 
or  that  the  process  was  sued  out  without  reasonable  or  probable  cause. — Grain- 
ger v.  Hill,  291. 

MARRIAGE. 

See  "Husband  and  Wife." 

An  action  lies  against  one  who  induces  plaintiff  to  marry  a  woman  on  the 
false  representation  that  she  is  virtuous. — Kujek  v.  Goldman,  21. 

Action  maintainable  for  words  spoken  of  plaintiff  by  defendant,  whereby  a 
contract  of  marriage  between  plaintiff  and  another  person  was  broken  off  by 
the  latter,  although  such  words  are  not  in  themselves  actionable,  and  although 
plaintiff  has  a  remedy  against  such  other  person  for  breach  of  the  contract 
— Moody  v.  Baker,  109. 

MASTER  AND  SERVANT. 

Action  maintainable  by  master  against  one  who  entices  away  his  servant, 
although  he  has  a  remedy  against  the  servant  upon  the  contract  of  employ- 
ment.— Moody  v.  Baker,  111. 

Action  maintainable  by  the  employer  in  a  contract  for  the  exclusive  person- 
al services  of  the  employe  against  a  third  person,  who  maliciously  induces  the 
employe  to  break  the  contract,  where  such  breach  causes,  as  a  natural  and 
probable  consequence,  injury  to  the  employer,  although  the  relation  between 
the  parties  to  the  contract  may  not  be  strictly  that  of  master  and  servant. — 
Bowen  v.  Hall,  113. 

Where  plaintiff  ordered  coal  of  defendant,  which  a  third  person,  without 
defendant's  knowledge  or  authority,  delivered,  and  in  so  doing  negligently  in- 
jured plaintiff's  building,  and  defendant,  with  knowledge  of  the  accident,  de- 
manded payment  of  the  coal,  such  demand  was  a  ratification  of  the  acts  of 
the  person  delivering  the  coal,  and  rendered  defendant  liable  for  the  injury. 
— Dempsey  v.  Chambers,  182. 


734  INDEX. 

A  railroad  company,  having  instructed  its  gatekeepers  not  to  let  passengers 
pass  from  its  trains  to  the  street  until  they  should  pay  their  fares  or  show 
tickets  therefor,  is  liable  for  false  imprisonment  by  a  gate  keeper  of  a  pass- 
enger who  had  lost  his  ticket. — Lynch  v.  Metropolitan  El.  Ry.  Co.,  226. 

A  combination  without  justification  to  injure  a  man  in  his  trade  by  inducing 
his  servants  to  leave  his  employment,  if  it  results  in  damage,  is  actionable. — 
Quinn  v.  Leathern,  297. 

Giving  character  of  servant  a  privileged  communication,  for  which  action  of 
slander  or  libel  will  not  lie,  unless  malice  in  fact  be  shown. — Bromage  v.  Pros- 
ser,  339 ;  Fresh  v.  Cutter,  356. 

A  person  in  the  employ  of  another,  charged  with  specific  duties,  does  not, 
while  in  the  performance  of  such  duties,  assume  the  risk  of  injury  from  a 
vicious  animal  kept  by  the  employer,  which  he  is  informed  will  be  kept  fast- 
ened.— Muller  v.  McKesson,  488. 

The  master  is  liable  for  a  conversion  by  his  apprentice  of  property  taken  by 
the  latter  in  the  line  of  his  employment. — Armory  v.  Delamirie,  509. 

Employer  required  to  exercise  reasonable  care  in  providing  safe  machinery 
and  appliances  for  the  use  of  his  servant. — Larmore  v.  Crown  Point  Iron  Co., 
556;  Pantzar  v.  Tilly  Foster  Min.  Co.,  610. 

The  act  of  a  workman  on  a  railroad  in  riding  on  the  pilot  of  an  engine, 
instead  of  in  the  car  provided  for  workmen,  although  he  was  informed  of  the 
danger  of  doing  so,  is  negligence  on  his  part,  contributing  to  his  injury  by  a 
collision  of  the  engine  with  cars  standing  on  the  track,  sufficient  to  defeat  a 
recovery  by  him  against  the  railroad  company  therefor. — Baltimore  &  P.  R. 
Co.  v.  Jones,  568. 

A  master  is  responsible  civiliter  for  the  wrongful  act  of  his  servant  caus- 
ing injury  to  a  third  person,  whether  the  act  was  one  of  negligence  or  pos- 
itive misfeasance,  if  it  was  done  by  the  servant  while  acting  for  the  master, 
and  within  the  scope  of  the  business  intrusted  to  him. — Rounds  v.  Delaware, 
L.  &  W.  R.  Co.,  602. 

Master  who  authorizes  servant  to  use  force  against  another,  when  necessary 
in  executing  the  master's  orders,  liable  for  the  use  of  an  unnecessary  degree 
of  force  by  the  servant,  through  his  misjudgment  or  violence  of  temper,  giv- 
ing a  right  of  action  to  another. — Rounds  v.  Delaware,  L.  &  W.  R.  Co.,  604. 

Master  not  liable  for  injury  by  his  servant  to  another,  done  under  guise 
and  cover  of  executing  the  master's  orders,  but  willfully  and  designedly,  for 
the  purpose  of  accomplishing  his  own  independent,  malicious,  or  wicked  pur- 
poses.— Rounds  v.  Delaware,  L.  &  W.  R.  Co.,  604. 

An  owner  of  real  estate,  who  engaged  a  contractor  to  remove  rock  from 
his  premises  by  blasting,  is  not  responsible  for  the  negligence  of  such  con- 
tractor or  his  employes  in  doing  the  work. — Berg  v.  Parsons,  606. 

One  employed  by  a  mining  company  in  constructing  a  wall  in  its  mine,  who 
is  ignorant  of  the  unsafe  condition  of  an  overhanging  rock,  and  whose  duties  do 
not  call  him  to  any  place  from  which  its  condition  could  be  observed,  is  not 
censurable  for  an  omission  to  observe  the  danger  in  time  to  avoid  it ;  but  the 
company,  having  notice  of  the  danger,  and  failing  to  adopt  proper  means  of 
protection,  is  liable  for  an  injury  to  the  employs  from  the  fall  of  the  rock. — 
Pantzar  v.  Tilly  Foster  Min.  Co.,  610. 

Master  cannot  delegate  the  performance  of  the  duty  to  provide  for  the 
safety  of  his  servant  to  a  superintendent  or  other  employ^,  so  as  to  exonerate 


INDEX.  735 

Wmself  from  liability  to  a  servant  who  has  been  injured  by  Its  nonperform- 
ance. — Pantzar  v.  Tilly  Foster  Min.  Co.,  611. 

The  rule  that  the  servant  takes  the  risk  of  the  service  presupposes  that  the 
master  has  performed  the  duties  of  care,  caution,  and  vigilance  which  the 
law  casts  upon  him. — Pantzar  v.  Tilly  Foster  Min.  Co.,  613. 

An  engineer,  using  a  defective  engine  after  being  assured  that  it  would 
be  repaired,  is  not  guilty  of  contributory  negligence. — Hough  v.  Texas  &  P. 
Ry.  Co.,  616. 

Where  a  master  has  expressly  promised  to  repair  a  defect  in  machinery,  a 
servant  can  recover  for  injury  caused  thereby  within  such  a  period  of  time 
after  the  promise  as  it  would  be  reasonable  to  allow  for  its  performance. — 
Hough  v.  Texas  &  P.  Ry.  Co.,  616. 

A  carpenter,  employed  by  a  railway  company  to  do  any  carpenter's  work 
for  its  general  purposes,  and  who,  while  standing  on  a  scaffolding  at  work 
on  a  shed  close  to  the  line  of  the  railway,  is  thrown  down  and  injured  by 
negligence  of  porters  in  the  service  of  the  company  in  shifting  an  engine  on  a 
turn-table  so  that  it  strikes  a  ladder  supporting  the  scaffold,  cannot  recover 
damages  therefor  from  the  company. — Morgan  v.  Vale  of  Neath  Ry.  Co.,  617. 

Master  not  liable  to  servant  for  injury  caused  by  negligence  of  fellow  serv- 
ant, where,  although  the  immediate  objects  on  which  the  two  servants  are  em- 
ployed are  very  dissimilar,  yet  the  risk  of  negligence  of  the  one  is  so  much  a 
natural  and  necessary  consequence  of  the  employment  which  the  other  ac- 
cepts that  it  must  be  included  in  the  risks  which  have  to  be  considered  in  his 
wages. — Morgan  v.  Vale  of  Neath  Ry.  Co.,  619. 

Wherever  an  employment  in  the  service  of  a  railway  company  is  such  as 
necessarily  to  bring  the  person  accepting  it  into  contact  with  the  traffic 
of  the  line,  risk  of  injury  from  the  carelessness  of  those  managing  the  traffic 
is  one  of  the  risks  necessarily  and  naturally  incident  to  such  employment,  and 
within  the  rule. — Morgan  v.  Vale  of  Neath  Ry.  Co.,  619. 

MAXIMS. 

Aqua  currit,  et  debet  eurrere,  ut  currere  solebat. — Webb  y.  Portland  Manufg 
Co.,  41 ;  Barkley  v.  Wilcox,  433 ;  Clinton  v.  Meyers,  437 ;  Merrifield  v.  Lom- 
bard, 441. 

Actus  non  facit  reuin  nisi  mens  sit  rea. — Bessey  v.  Olliot,  118. 

Volenti  non  fit  injuria.— Barholt  v.  Wright,  194. 

The  greater  the  truth,  the  greater  the  libel. — Castle  v.  Houston,  346. 

Acta  exteriora  indicant  interiora  secreta. — Six  Carpenters'  Case,  401. 

Cessante  ratione  cessat  ipsa  lex. — Campbell  v.  Race,  411. 

Sic  utere  tuo  ut  alienum  non  laedas. — Campbell  y.  Seaman,  418. 

Caveat  emptor. — Grigsby  v.  Stapleton,  646. 

MAYHEM. 

For  a  conviction  of  mayhem  for  an  injury  during  a  conflict,  It  is  not  neces- 
sary that  the  accused  should  have  formed  the  intent  before  engaging  in  the 
conflict. — Barholt  v.  Wright,  196. 


736  INDEX. 

MERCANTILE  AGENCIES. 

A  communication,  by  proprietors  of  a  mercantile  agency,  to  their  subscrib- 
ers, of  a  report  of  the  failure  of  certain  merchants,  is  privileged  only  when 
made  iu  good  faith,  to  those  having  an  interest  in  the  information. — Sunder- 
lin  v.  Bradstreet,  365. 

False  representations  to  a  commercial  agency  as  to  the  financial  standing  of 
a  firm,  made  with  the  intent  that  they  should  be  communicated  to  and  acted 
upon  by  persons  interested  in  the  firm's  standing,  will  sustain  an  action  for 
deceit  by  persons  who  were  thereby  induced  to  extend  credit  to  the  firm. — » 
Eaton,  Cole  &  Burnham  Co.  v.  Avery,  008. 

MINES. 

Injuries  to  adjoining  property  caused  by  excavations  In  mining  accrue  at 
time  of  injury,  and  not  at  time  of  excavation. — Bonouii  v.  Backhouse,  66. 

MISTAKE. 

Not  an  excuse  for  trespass. — Hobart  v.  Haggett,  490 ;  Dexter  v.  Cole,  492. 

MITIGATION. 

The  fact  that  the  Injuries  complained  of  were  inflicted  In  a  fight  engaged 
in  by  the  parties  by  mutual  consent  is  ground  for  mitigation  of  damages. — 
Barholt  v.  Wright,  196. 

Words  or  insults  may  be  considered  in  mitigation  in  damages  for  assault. — 
Daniel  v.  Giles,  204. 

In  an  action  for  assault,  evidence  that  the  plaintiff  had  insulted  defendant's 
wife  three  hours  before  the  time  of  the  alleged  assault  is  inadmissible  in 
mitigation  of  damages. — Dupee  v.  Lentine,  206. 

Payment  of  proceeds  of  sheriff's  sale  of  goods  under  an  invalid  levy  not 
available  to  him  in  mitigation  of  damages  therefor,  being  but  a  continuation 
and  aggravation  of  the  original  trespass. — Welsh  v.  Wilson,  546. 

MORAL  DUTY. 

Violation  does  not  constitute  a  tort,  unless  a  legal  right  or  duty  is  vio- 
lated.— Lamb  v.  Stone,  17. 

Ground  of  privilege  for  making  a  defamatory  communication. — Byam  v. 
Collins,  359. 

MUNICIPAL  CORPORATIONS. 

A  village  may  recover  from  an  abutting  owner  the  amount  which  it  Is  com- 
pelled to  pay  a  person  injured  by  the  defective  condition  of  a  sidewalk 
caused  by  him. — Trustees  of  Village  of  Canandaigua  v.  Foster,  176. 

Cannot  enforce  obedience  to  by-laws  or  ordinances  by  imprisonment,  un- 
less expressly  authorized  to  do  so  by  statute. — Lynch  v.  Metropolitan  El.  Ry. 
Co.,  225. 


INDEX.  737 

Where  the  duty  is  imposed  by  law  upon  a  city  to  keep  its  sewera  in  repair, 
aii  omission  to  make  the  examination  necessary  to  guard  against  an  obstruc- 
tion or  dilapidation  of  the  sewer,  which  is  an  ordinary  result  of  its  use,  and 
might  have  been  discovered  on  inspection,  is  a  neglect  of  duty  which  renders 
the  city  liable  for  damages  thereby  caused,  although  none  of  its  officials  had 
notice  that  the  sewer  was  obstructed  or  out  of  repair. — McCarthy  v.  City  of 
Syracuse,  541. 

NECESSITY. 

Excuse  for  entry  on  land  of  another. — Newkirk  y.  Sabler,  392;  Proctor  v. 
Adams,  408;  Campbell  v.  Race,  409. 

NEGLIGENCE. 

Occupant  of  land  lawfully  making  excavation  therein  In  ordinary  manner, 
not  near  highway,  not  liable  for  injuries  to  trespasser  falling  into  excava- 
tion.— Gramlich  v.  Wurst,  13. 

Owner  of  building,  letting  rooms  in  it  with  right  to  tenant  to  go  upon  root 
of  extension  to  dry  clothes,  not  liable  for  injuries  to  visitor  of  tenant  received 
by  falling  from  window  of  latter's  rooms  through  unprotected  skylight  in 
roof  of  extension. — Miller  v.  Woodhead,  9. 

It  is  a  question  for  the  jury,  where  measure  of  duty  is  ordinary  and  reason- 
able care,  and  standard  of  degree  of  care  shifts  with  circumstances,  or  where 
essential  facts  are  controverted. — Gramlich  v.  Wurst,  12. 

Negligence  is  a  question  for  the  court,  where  there  is  no  conflict  of  testi- 
mony, and  the  standards  by  which  human  conduct  is  to  be  governed  in  cases 
of  like  impression  with  that  before  the  court  have  been  judicially  defined. — 
Gramlich  v.  Wurst.  12. 

Exceptional  safeguards  not  required  where  there  are  no  exceptional  haz- 
ards.— Gramlich  v.  Wurst,  12. 

Failure  of  owner  of  tenement  house  to  comply  with  statute  requiring  fire 
escapes  to  be  provided  therefor  is  a  breach  of  duty,  for  which  he  is  liable 
to  a  tenant  for  damage  thereby  caused  to  the  latter. — Willy  v.  Mulledy,  30. 

Owner  of  tenement  house,  who  has  failed  to  provide  fire  escapes  therefor,  as 
required  by  statute,  is  not  relieved  from  liability  for  damage  thereby  caused 
to  a  tenant,  by  the  fact  that  the  tenant  had  occupied  the  premises  for  a  few 
days  previous  to  the  fire  causing  the  damage. — Willy  v.  Mulledy,  31. 

A  landowner  has  the  absolute  right  to  have  his  land  remain  in  its  natural 
condition,  and  if  his  neighbor  digs  upon  or  improves  his  own  land,  so  as  to 
injure  this  right,  may  maintain  an  action  therefor  without  proof  of  negligence. 
— Gilmore  v.  Driscoll,  49. 

Railroad  company,  doing  blasting  on  its  own  land  and  exercising  due 
care,  is  not  liable  for  injury  to  adjoining  property  arising  from  concussion 
of  the  atmosphere  or  jarring  of  the  ground. — Booth  v.  Rome,  W.  &  O.  T.  R. 
Co.,  56. 

Where  act  or  omission  complained  of  is  not  a  distinct  wrong,  damages  must 
be  proved  to  sustain  action. — Chicago,  W.  D.  Ry.  Co.  v.  Rend,  66. 

To  make  a  negligent  act  the  proximate  cause  of  an  injury,  it  is  not  necessary 
that  particular  injury  and  particular  manner   in  which  it  occurred  might 
reasonably  have  been  expected  to  follow. — City  of  Dixou  v.  Scott,  80. 
CHASE  (2o  ED.) — 47 


738  INDEX. 

Leading  a  horse  harnessed  to  a  wagon  by  tying  It  behind  another  wagon  Is  a 
condition  and  not  a  cause  of  Injuries  to  the  horse  by  a  vicious  dog. — Boulester 
v.  Parsons,  81. 

Damage  to  cargo  by  water  escaping  through  pipe  of  steam  boiler,  In  con- 
sequence of  pipe  having  been  cracked  by  frost,  is  due  to  negligence  of  captain 
and  not  act  of  God.— Siordet  v.  Hall,  83. 

Where  child  fell  through  a  bridge  into  canal,  in  consequence  of  negligent 
condition  of  bridge  and  without  contributory  negligence  of  parents  of  child, 
and  the  father,  in  an  effort  to  rescue  the  child,  plunged  into  the  canal,  and 
both  were  drowned,  the  death  of  both  is  attributable  to  negligence  in  main- 
taining bridge. — Gibney  v.  State,  93. 

Where  defendant  was  negligent  In  keeping  oil  upon  a  platform,  which  was 
subsequently  fired  by  carelessness  of  another,  the  acts  of  the  defendant  and 
the  third  person  are  not  concurrent. — Stone  v.  Boston  &  A.  R.  Co.,  99. 

Railroad  company  not  liable  for  property  destroyed  by  fire  caused  by  third 
person  throwing  lighted  match  on  oil  on  the  platform  at  defendant's  station. — 
Stone  v.  Boston  &  A.  R.  Co.,  99. 

Action  for  personal  injuries  from  dangerous  obstruction  in  the  highway 
maintainable  against  person  who  unlawfully  placed  it  there,  although  the 
immediate  cause  of  the  injury  -was  the  intervening  act  of  another. — Clark  v. 
Chambers,  106. 

Leaving  a  dangerous  machine  in  a  public  place  without  precaution  against 
mischief  constitutes  negligence. — Clark  v.  Chambers,  108. 

Lunatic  liable  for  negligence  in  permitting  tenement  house  to  be  In  defec- 
tive condition. — Morain  v.  Devlin,  127. 

What  constitutes  ordinary  care  varies  with  circumstances. — Brown  v.  Ken- 
dall, 130. 

No  liability  results  from  an  injury  arising  from  inevitable  accident. — Harvey 
v.  Dunlop,  131. 

No  justification  admissible  where  life  of  one  person  has  been  lost  by  negli- 
gence of  another,  whether  by  negligent  act  or  negligent  omission  of  duty  of 
the  latter. — Thomas  v.  Winchester,  160. 

Person  guilty  of  act  of  negligence,  imminently  dangerous  to  lives  of  others, 
is  liable  to  one  injured  thereby,  whether  there  be  a  contract  between  them 
or  not;  if  the  act  was  not  so,  the  negligent  party  is  liable  only  to  the  party 
with  whom  he  contracted,  and  on  the  ground  that  negligence  is  a  breach  of 
the  contract. — Thomas  v.  Winchester,  161. 

To  render  an  infant  who  has  hired  a  horse  liable  for  trespass,  he  must  do 
some  positive  act  which  amounts  to  an  election  to  disaffirm  the  contract. — 
Moore  v.  Eastman,  166. 

Where  an  infant  who  has  hired  a  horse  willfully  and  intentionally  injures 
the  animal,  an  action  for  trespass  will  lie  for  the  tort,  but  not  if  the  injury 
occurred  through  unskillfulness. — Moore  v.  Eastman,  166. 

In  actions  of  negligence,  the  liability  of  defendants  is  joint  and  several. — 
Kirby  v.  President,  etc.,  of  Delaware  &  II.  Canal  Co.,  170. 

Where  a  judgment  was  recovered  in  tort  against  three  defendants  jointly 
interested  in  the  running  of  a  stage  for  an  injury  caused  to  a  traveler  by  the 
negligence  of  one  of  the  defendants,  who  was  driving,  one  of  the  other  defend- 
ants, who  was  compelled  to  pay  the  whole  amount  of  the  judgment,  was  en- 
titled to  contribution. — Bailey  v.  Bussing,  172. 


INDEX.  739 

The  rule  that  there  can  be  no  contribution  among  wrongdoers  applies  only 
to  cases  where  there  has  been  an  intentional  violation  0%  the  law,  or  where 
the  wrongdoer  is  to  be  presumed  to  have  known  that  the  act  was  unlawful. — 
Bailey  v.  Bussing,  174. 

A  village  may  recover  from  an  abutting  owner  the  amount  which  it  is  com- 
pelled to  pay  a  person  injured  by  the  defective  condition  of  a  sidewalk  caused 
by  him. — Trustees  of  Village  of  Canandaigua  v.  Foster,  176. 

Where  plaintiff  ordered  coal  of  defendant,  which  a  third  person,  without  de- 
fendant's knowledge  or  authority,  delivered,  and  in  so  doing  negligently  in- 
jured plaintiff's  building,  and  defendant,  with  knowledge  of  the  accident, 
demanded  payment  of  the  coal,  such  demand  was  a  ratification  of  the  acts 
of  the  person  delivering  the  coal,  and  rendered  defendant  liable  for  the  in- 
jury.— Dempsey  v.  Chambers,  182. 

Doctrine  of  contributory  negligence  does  not  apply  to  cases  of  commission 
of  intentional  wrong. — Barholt  v.  Wright,  196. 

A  postmaster  is  not  liable  for  the  loss  of  a  letter  occasioned  by  the  negli- 
gence or  wrongful  conduct  of  his  clerk,  appointed  and  sworn  as  required  by 
law,  though  selected  by  him  and  subject  to  his  orders. — Keenan  v.  South- 
worth,  543. 

A  person  who  goes  upon  the  land  of  another  without  invitation,  to  secure 
employment  from  the  owner  of  the  land,  is  not  entitled  to  indemnity  from 
such  owner  for  an  injury  happening  from  the  operation  of  a  defective  machine 
on  the  premises,  not  obviously  dangerous,  which  he  passes  in  the  course  of 
his  journey,  though  he  can  show  that  the  owner  might  have  ascertained  the 
defect  by  the  exercise  of  reasonable  care,  for  as  to  such  person  there  is  no 
violation  of  a  legal  duty. — Larmore  v.  Crown  Point  Iron  Co.,  556. 

No  right  of  action  for  negligence  unless  there  is  a  violation  of  legal  duty. — 
Larmore  v.  Crown  Point  Iron  Co.,  556. 

In  the  absence  of  statute  as  to  guards  or  of  invitation  upon  the  premises, 
the  owner  is  not  liable  to  a  fireman,  who  has  entered  in  the  course  of  his 
duties  at  a  fire,  for  leaving  his  elevator  well  open  and  so  stacking  his  merchan- 
dise as  to  guide  one  into  it. — Beehler  v.  Daniels,  Cornell  &  Co.,  558. 

An  owner  is  not  liable  for  injuries  caused  by  the  explosion  of  a  steam 
boiler  used  by  him  on  his  premises,  without  proof  of  want  of  due  care  and 
skill  on  the  part  of  him  or  his  agent. — Marshall  v.  Welwood,  560. 

As  a  general  principle,  blame  must  be  imputable  as  a  ground  of  responsibility 
for  damage  proceeding  from  a  lawful  act. — Marshall  v.  Welwood,  563. 

A  person  is  not  in  law,  as  a  general  rule,  answerable  for  the  natural  conse- 
quences of  his  acts,  where  such  acts  are  lawful  in  themselves,  and  are  done 
with  proper  care  and  skill. — Marshall  v.  Welwood,  563. 

Where  a  person's  own  negligence  or  want  of  ordinary  care  and  caution 
s6  far  contributes  to  an  injury  to  himself  that  but  for  such  negligence  or 
want  of  ordinary  care  and  caution  on  his  own  part  the  injury  would  not  have 
happened,  he  cannot  recover  therefor. — Baltimore  &  P.  R.  Co.  v.  Jones,  568. 

Negligence  of  a  plaintiff,  exposing  his  property  to  injury,  will  not  preclude 
his  recovery  of  damages  from  a  person  whose  subsequent  negligence  actually 
causes  injury  to  the  property,  if  the  latter's  negligence  is  the  proximate  cause 
of  such  injury. — Davies  v.  Mann,  571. 

A  child  of  such  tender  years  as  to  be  incapable  of  exercising  judgment 
and  discretion  cannot  be  charged  with  contributory  negligence. — Twist  v. 
Winona  &  St  P.  R.  Co.,  574. 


740  INDEX. 

Owner  of  dangerous  machinery,  who  leaves  it  In  an  open  place  on  his  own 
land,  not  liable  for  negligence  because  he  fails  to  take  active  measures  to 
Insure  the  safety  of  au  intruder, — at  least  as  to  one  of  sufficient  mental 
capacity  to  be  a  conscious  trespasser. — Twist  v.  Winona  &  St.  P.  R.  Co.,  57-i. 

But  even  a  child  is  bound  to  use  such  reasonable  care  as  one  of  his  age 
and  mental  capacity  is  capable  of  using,  and  his  failure  to  do  so  is  negligence. 
—Twist  v.  Winona  &  St  P.  R.  Co.,  575. 

The  escape  of  a  child  three  or  four  years  old  into  the  street  through  an 
open  window,  the  doors  being  locked,  is  not  conclusive  evidence  of  the  parent's 
negligence. — Mangam  v.  Brooklyn  R.  Co.,  580. 

In  cases  of  injuries  to  infants  of  tender  years,  received  through  the  negli- 
gence of  others,  the  law  imputes  to  the  infants  the  negligence  of  the  parents.— 
Mangam  v.  Brooklyn  R.  Co.,  580. 

Where  a  child  four  years  old  was  injured  while  exercising  what  would  be 
regarded  as  ordinary  care  in  an  adult,  the  question  of  the  negligence  of  its 
parents  is  immaterial. — McGarry  v.  Loomis,  584. 

A  child  two  years  of  age,  who,  while  under  the  care  of  an  adult  sister,  goes 
upon  the  track  of  a  horse  railroad,  and  is  there  run  over  by  the  carelessness  of 
the  driver  of  a  car  thereon,  is  not  deprived  of  a  right  of  action  for  the  injury, 
although  the  sister's  carelessness  of  supervision  was,  in  part,  the  cause  of  the 
injury. — Newman  v.  Phillipsburg  Horse  Car  R.  Co.,  585. 

A  child  of  tender  years  is  not  chargeable  with  negligence  of  the  person  hav- 
ing him  in  charge. — Newman  v.  Phillipsburg  Horse  Car  R.  Co.,  588. 

The  negligence  of  a  carrier  is  not  imputable  to  a  passenger  who  exercises 
no  control  over  the  carrier. — Little  v.  Hackett,  593. 

Where  a  passenger  jumped  from  a  moving  car  to  escape  a  threatened  col- 
lision, the  question  of  negligence  is  to  be  judged  by  the  circumstances  as  they 
appear  to  the  passenger. — Tworuley  v.  Central  Park,  N.  &  E.  R.  R.  Co.,  598. 

Negligence  cannot  be  imputed  by  law  to  a  person  in  his  effort  to  save  the 
life  of  another  in  extreme  peril,  unless  made  under  such  circumstances  as  to 
constitute  rashness  in  the  judgment  of  prudent  persons. — Eckert  v.  Long  Is- 
land R.  Co.,  600. 

An  owner  of  real  estate,  who  has  engaged  a  contractor  to  remove  rock  from 
his  premises  by  blasting,  is  not  responsible  for  the  negligence  of  such  con- 
tractor or  his  employes. — Berg  v.  Parsons,  606. 

An  engineer,  using  a  defective  engine  after  being  assured  that  it  would  be 
repaired,  is  not  guilty  of  contributory  negligence. — Hough  v.  Texas  &  P.  Ry. 
Co.,  616. 

NEGOTIABLE  INSTRUMENTS. 

One  to  whom  a  promissory  note  is  delivered  by  the  payee  to  be  negotiated 
with  instructions  not  to  part  with  the  possession  of  it  without  receiving  the 
money,  and  who  delivers  the  note  to  a  third  person  under  the  promise  of  the 
latter  to  get  it  discounted  and  return  the  proceeds,  is  liable  to  the  payee,  as 
for  a  conversion  of  the  note,  for  the  loss  by  the  appropriation  of  the  pro- 
ceeds of  the  note  by  such 'third  person. — Laverty  v.  Snethen,  496. 

Demand  and  refusal  of  bills  of  exchange  do  not  establish  a  conversion  there- 
of, when  they  have  previously  been  accidentally  lost  and  destroyed. — Salt 
Springs  Nat  Bank  v.  Wheeler,  519. 


INDEX.  741 


NOISE. 

The  right  to  make  a  noise  for  a  proper  purpose  must  be  measured  In  refer- 
ence to  the  degree  of  annoyance  which  others  may  reasonably  be  required  to 
submit  to,  which  is  to  be  determined,  in  connection  with  the  importance  of 
the  business,  by  the  effect  of  noise  upon  people  generally. — Rogers  v.  Elliott, 
44U. 

A  use  of  property  which  is  objectionable  solely  on  account  of  the  noise 
which  it  makes  is  a  nuisance,  if  at  all,  by  reason  of  its  effect  upon  the  health 
or  comfort  of  those  who  are  within  hearing. — Rogers  v.  Elliott,  446. 

Ringing  the  bell  of  a  church,  built  upon  a  public  street  in  a  thickly  set- 
tled part  of  a  town,  in  such  manner  as  to  materially  affect  the  health  or  com- 
fort of  all  in  the  vicinity,  whether  residing  or  passing  there,  constitutes  a 
public  nuisance. — Rogers  v.  Elliott,  446. 

NOMINAL  DAMAGES. 

Recoverable  for  wanton  and  unnecessary  injury  to  land  In  the  use  of  an 
easement  therein,  although  no  particular  amount  of  damages  is  proved. — 
Webb  v.  Portland  Mauuf'g  Co.,  39. 

NOTICE. 

A  party  causing  injuries  by  alteration  of  dam  Is  not  entitled  to  notice  to 
abate  before  action  brought. — Curtice  v.  Thompson,  459. 

Notice  or  request  to  remove  a  nuisance  must  be  given  to  occupant  of  prem- 
ises on  which  it  exists,  before  an  entry  thereon  by  another  to  abate  it,  if  it  is 
merely  continued  by  such  occupant  as  alienee  of  the  premises,  and  he  was  not 
himself  the  wrongdoer  by  having  created  the  nuisance  or  neglected  to  per- 
form some  obligation  by  the  breach  of  which  it  was  created. — Jones  v.  Wil- 
liams, 476. 

NOXIOUS  VAPORS. 

The  destruction  of  ornamental  and  useful  trees  and  vines  by  the  vapors 
and  gases  from  a  brick  kiln  is  such  irreparable  injury  as  a  court  of  equity 
will  enjoin. — Campbell  v.  Seaman,  422. 

An  injury  to  property  by  noxious  vapors  arising  on  the  land  of  another,  to 
be  actionable,  must  be  such  as  visibly  to  diminish  the  value  of  the  property, 
and  the  comfort  and  enjoyment  of  it;  and,  in  determining  that  question,  the 
time,  locality,  and  all  the  circumstances  should  be  taken  into  consideration. — 
St.  Helen's  Smelting  Co.  v.  Tipping,  425. 

An  action  for  such  an  injury  may  be  maintained,  although  the  business  by 
the  operation  of  which  it  is  caused  is  a  necessary  trade,  and  the  place  Is  a 
suitable  place  for  such  a  trade,  and  it  is  carried  on  in  a  reasonable  manner. — 
St  Helen's  Smelting  Co.  v.  Tipping,  425. 

NUISANCE. 

Annoyance  to  habitation  or  estate  may  constitute  a  nuisance. — Guest  y. 
Reynolds,  3. 


742  INDEX. 

Obstruction  of  street  by  railroad  company,  causing  Injury  to  plaintiffs 
business,  is  a  public  nuisance  causing  special  injury  to  plaintiff,  for  which  he 
might  maintain  an  action  or  injunction. — Buchholz  v.  New  York,  L.  E.  &  W. 
R.  Co.,  68. 

The  unreasonable,  unwarrantable,  or  unlawful  use  of  one's  own  property, 
producing  material  annoyance,  inconvenience,  discomfort,  or  hurt  to  his  neigh- 
bor, constitutes  a  nuisance. — Campbell  v.  Seaman,  418. 

The  burning  of  brick  in  a  kiln,  which  produces  noxious  gases,  Injuring  an- 
other's property,  is  a  nuisance,  though  brick  burning  is  a  useful  and  necessary 
industry. — Campbell  v.  Seaman,  419. 

The  writ  of  injunction  is  not  a  matter  of  grace,  but  of  right,  in  a  proper 
case,  and  will  be  granted  to  restrain  irreparable  injury,  whether  it  be  to  the 
enjoyment  of  the  necessities  or  the  luxuries  of  life. — Campbell  v.  Seaman,  422. 

A  person  cannot,  by  erecting  a  nuisance  upon  his  land  adjoining  vacant 
land  owned  by  another,  control  or  lessen  the  latter's  use  of  the  laud,  unless 
he  can  acquire  such  right  by  prescription. — Campbell  v.  Seaman,  423. 

An  injury  to  property  by  noxious  vapors  arising  on  the  land  of  another,  to 
be  actionable,  must  be  such  as  visibly  to  diminish  the  value  of  the  property, 
and  the  comfort  and  enjoyment  of  it;  and,  in  determining  that  question,  the 
time,  locality,  and  all  the  circumstances  should  be  taken  into  consideration. — 
St  Helen's  Smelting  Co.  v.  Tipping,  425. 

An  action  for  such  an  injury  may  be  maintained,  although  the  business  by 
the  operation  of  which  it  is  caused  is  a  necessary  trade,  and  the  place  is  a 
suitable  place  for  such  a  trade,  and  it  is  carried  on  in  a  reasonable  manner. — 
St.  Helen's  Smelting  Co.  v.  Tipping,  425. 

The  pollution  of  a  stream  of  water  so  as  to  prevent  the  use  of  it  for  any  of 
the  reasonable  and  proper  purposes  to  which  running  water  is  usually  ap- 
plied is  an  ir.fringment  of  the  rights  of  other  riparian  owners,  and  creates  a 
nuisance  which  will  be  enjoined  at  the  suit  of  those  injured. — Merrifleld  v. 
Lombard,  441. 

Acts  of  an  upper  riparian  proprietor,  in  so  conducting  his  business  as  to 
permit  poisonous  and  corrosive  substances  to  run  into  the  stream  by  which 
the  machinery  of  a  lower  proprietor  is  corroded  and  destroyed,  will  be  re- 
strained, as  tending  to  create  a  nuisance  of  a  continuous  character. — Merri- 
fleld v.  Lombard,  442. 

An  owner  of  land  has  no  right  to  use  it  in  such  a  way  as  to  be  a  nuisance 
to  neighbor. — Ballard  v.  Tomlinson,  443. 

A  person  who,  by  reason  of  a  sunstroke,  is  peculiarly  susceptible  to  the  noise 
caused  by  the  ringing  of  a  church  bell,  situated  directly  opposite  his  house 
in  a  thickly  populated  district,  cannot,  in  the  absence  of  evidence  of  express 
malice,  or  that  the  bell  was  objectionable  to  persons  of  ordinary  health  and 
strength,  maintain  an  action  against  the  custodian  of  such  church  for  suffer- 
ings caused  by  the  ringing  of  such  bell. — Rogers  v.  Elliott,  445. 

A  use  of  property  which  is  objectionable  solely  on  account  of  the  noise 
which  it  makes  is  a  nuisance,  if  at  all,  by  reason  of  its  effect  upon  the  health 
or  comfort  of  those  who  are  within  hearing. — Rogers  v.  Elliott,  446. 

The  right  to  make  a  noise  for  a  proper  purpose  must  be  measured,  in  ref- 
erence to  the  degree  of  annoyance  which  others  may  reasonably  be  required 
to  submit  to,  which  is  to  be  determined,  in  connection  with  the  importance  ot 
the  business,  by  the  effect  of  noise  upon  people  generally.— Rogers  v.  Elliott, 
446. 


INDEX.  743 

The  mere  keeping  of  gunpowder  in  dangerous  proximity  to  the  premises  of 
another  is  a  nuisance,  rendering  the  person  keeping  it  liable  for  injuries 
caused  by  its  explosion,  irrespective  of  the  question  of  his  negligence. — Heeg 
v.  Licht,  449. 

Persons  who,  without  authority,  make  or  continue  a  covered  excavation 
in  a  public  street  or  highway  for  a  private  purpose,  are  liable  for  all  injuries 
to  individuals  resulting  from  the  street  or  highway  being  thereby  less  safe 
for  its  appropriate  use,  irrespective  of  the  question  of  negligence  in  those  who 
make  the  excavation. — Congreve  v.  Smith,  454. 

That  the  injuries  were  caused  by  the  negligence,  in  covering  the  excavation, 
of  servants  of  contractors  for  that  work,  who  had  contracted  to  do  it  proper- 
ly, does  not  relieve  from  liability  the  persons  who  procured  it  to  be  done, 
and  did  not  object  to  it,  and  continued  the  excavation  in  its  unsafe  condition, 
they  being  bound,  at  their  peril,  to  make  and  at  all  times  keep  the  street 
as  safe  as  it  would  have  been  if  the  excavation  had  not  been  made. — Congreve 
v.  Smith,  454. 

Where  a  cesspool  is  so  constructed  by  the  owner  of  the  premises  that 
the  offensive  matter  deposited  therein  by  his  tenants  necessarily  percolates 
through  to  the  adjoining  premises,  the  owner  is  equally  liable  with  the 
tenants  for  the  injury  to  the  adjoining  occupant — Fow  v.  Roberts,  457. 

A  party  causing  a  nuisance  is  not  exonerated  by  conveying  the  land  to 
another  from  damages  arising  after  the  conveyance. — Curtice  v.  Thompson, 
458. 

Party  causing  overflowage  by  alteration  of  dam  not  entitled  to  notice  to 
abate  before  action  brought. — Curtice  v.  Thompson,  459. 

A  tenant  for  years  is  not  liable  for  keeping  a  nuisance  as  it  was  used  be- 
fore his  tenancy  commenced,  in  the  absence  of  a  request  to  remove  it,  if  he 
does  no  new  act  of  itself  amounting  to  a  nuisance. — McDonough  v.  Oilman, 
460. 

A  tenant  for  years,  who  restores  a  nuisance  to  a  right  of  way  after  the  same 
has  been  abated,  is  liable  therefor,  although  the  same  existed  before  his  ten- 
ancy ;  but  merely  repairing  it  after  it  was  injured,  but  not  abated,  will  not 
make  him  liable,  if  it  does  not  become  more  of  a  nuisance  thereby. — Mc- 
Donough v.  Oilman,  460. 

The  notice  to  a  tenant  to  remove  a  nuisance  which  is  kept  by  him  in  the 
manner  in  which  it  existed  when  his  tenancy  commenced,  without  any 
act  on  his  part  amounting  in  itself  to  a  nuisance,  must  be  clear  and  UD<*- 
quivocal,  to  make  him  liable  for  the  continuance. — McDonough  v.  Oilman,  462 

The  landlord  or  grantor  who  has  created  a  nuisance  is  himself  liable,  not 
withstanding  his  lease  or  grant,  for  the  continuance  of  the  nuisance  by 
his  lessee  or  grantee. — McDonough  v.  Oilman,  462. 

Action  for  nuisance  does  not  lie  against  a  grantee  of  the  premises,  unless, 
after  request  made  to  abate  it,  he  does  not  remove  the  nuisance. — McDonough 
v.  Oilman,  462. 

If  the  right  invaded  or  impaired  by  an  alleged  nuisance  is  a  common  and 
public  one,  a  mere  deprivation  or  obstruction  of  the  use,  which  excludes 
or  hinders  all  persons  alike,  and  does  not  cause  any  special  or  peculiar  dam- 
age to  any  one,  furnishes  no  valid  cause  of  action  to  an  individual,  although 
be  may  suffer  inconvenience  or  delay  greater  in  degree  than  others  from  the 
alleged  obstruction  or  hindrance. — Wesson  v.  Washburn  Iron  Co.,  463, 


744  INDEX. 

A  person  may  recover  for  Injuries  to  his  premises  caused  by  noise,  smoke, 
and  noxious  vapors  in  the  operation  of  another's  rolling  mills,  though  many 
other  persons  in  the  same  neighborhood  are  injured  in  the  same  way. — Wes- 
son r.  Washburn  Iron  Co.,  465. 

But  an  alleged  nuisance  which  injures  private  property,  or  the  health 
or  comfort  of  an  individual,  is  in  its  nature  special  and  peculiar,  and  is  ac- 
tionable, though  it  is  committed  in  a  manner  and  under  circumstances  which 
would  render  the  guilty  party  liable  to  an  indictment  for  a  common  nui- 
sance.— Wesson  v.  Washburn  Iron  Co.,  466. 

Legislature  may  authorize  use  of  bells,  whistles,  etc.,  by  employers  for  pur- 
pose of  giving  notice  to  their  workmen,  under  regulation  of  municipal  au- 
thorities, although  thereby  injury  is  caused  to  individuals,  such  as  a  court  of 
equity  would  restrain. — Sawyer  v.  Davis,  469. 

A  statute  wihch  authorizes  a  thing  to  be  done  which  can  be  done  without 
creating  a  nuisance  will  not  be  deemed  to  authorize  a  nuisance. — Sawyer  v. 
Davis,  472. 

An  act  of  the  Legislature,  which  directs  or  allows  that  to  be  done  which 
would  otherwise  be  a  nuisance,  is  valid,  unless  it  can  fairly  be  said  to  be  an 
unwholesome  and  unreasonable  law. — Sawyer  v.  Davis,  472. 

Entry  on  land  of  another  to  abate  a  nuisance  thereon,  without  previous  re- 
quest or  notice  to  the  occupant  to  remove  it,  not  justifiable  in  the  case 
of  a  nuisance  merely  continued  by  such  occupant  as  alienee  of  the  premises, 
where  he  was  not  himself  the  wrongdoer  by  having  created  the  nuisance 
or  neglected  to  perform  some  obligation  by  the  breach  of  which  it  was 
created. — Jones  v.  Williams,  476. 

A  private  person  may  not  of  his  own  motion  abate  a  strictly  public  nui- 
sance.— State  v.  White,  478. 

A  private  person  may  abate  a  public  nuisance  causing  special  injury  to  him, 
where  he  can  do  so  without  a  breach  of  the  peace. — State  v.  White,  478. 

Where  a  nuisance  consists  of  improper  use  of  building,  the  remedy  is  to 
stop  that  use,  and  not  to  destroy  the  building  itself. — Brightman  v.  Inhabit- 
ants of  Bristol,  480. 

That  a  porgy  oil  factory,  not  in  itself  unlawful,  becomes  a  nuisance  on  ac- 
count of  its  location,  does  not  justify  its  destruction  by  a  mob  on  their  own 
responsibility. — Brightman  v.  Inhabitants  of  Bristol,  481. 

A  dog  accustomed  to  bite  persons  is  a  public  nuisance,  and  may  be  killed 
by  any  one  when  found  running  at  large. — Muller  v.  McKesson,  484. 

OBSTRUCTING  PROCESS. 

Officer  justified  in  using  force  necessary  to  overcome  unlawful  resistance 
to  process. — Hager  v.  Danforth,  214. 

OFFENSIVE  TRADES. 

See  "Noxious  Vapors." 

Offensive  odors  ground  of  action  for  nuisance. — Guest  r.  Reynolds,  3. 

The  business  of  an  undertaker  will  not  be  restrained  at  the  suit  of  an  ad- 
Joining  owner,  because  such  business  is  an  offense  to  him,  or  destructive  to  his 


INDEX.  745 

comfort  or  his  enjoyment  of  his  home,  unless  the  acts  complained  of  are  of 
such  a  nature  as  to  affect  all  reasonable  persons  similarly  situated. — Rogers 
T.  Elliott,  447. 

Carrying  on  a  business,  although  a  lawful  trade,  which  of  itself  produces 
Inconvenience  and  injury  to  others,  as  being  offensive  to  the  senses  and  ren- 
dering the  enjoyment  of  life  and  property  uncomfortable,  may  constitute  a 
nuisance.  It  is  not  necessary  that  it  should  endanger  the  health  of  the 
neighborhood. — Heeg  v.  Licht,  451. 

That  a  porgy  oil  factory,  not  in  itself  unlawful,  becomes  a  nuisance  on 
account  of  its  location,  does  not  justify  its  destruction  by  a  mob  on  their  own 
responsibility. — Brightman  v.  Inhabitants  of  Bristol,  481. 

OFFICERS. 

Protected  from  action  for  making  arrest,  although  warrant  is  void,  if 
regular  on  its  face. — Rice  v.  Coolidge,  27. 

When  a  duty  is  imposed  by  statute  upon  a  public  officer,  any  person  hav- 
ing a  special  interest  in  the  performance  thereof  may  sue  for  a  breach 
thereof  causing  him  damage. — Willy  v.  Mulledy,  30. 

Public  officer  serving  process  justified  in  using  force  necessary  to  overcome 
unlawful  resistance. — Hager  v.  Danforth,  214. 

A  judicial  officer  having  general  powers  is  responsible  for  causing  an  arrest 
in  all  cases  over  which  he  has  cognizance,  unless  the  case  is  by  complaint  or 
other  proceeding  put  colorably  under  his  jurisdiction. — Grove  v.  Van  Duyn, 
233. 

An  officer  making  an  arrest  under  process  issued  by  a  magistrate  is  liable 
for  false  imprisonment,  if  the  process  is  void  on  its  face. — Elsemore  v.  Long- 
fellow, 240. 

Complaint  insufficient  to  justify  warrant  of  arrest,  so  as  to  protect  officer. — 
Elsemore  v.  Longfellow,  240. 

Under  a  constitutional  provision  that  no  warrant  to  seize  any  person  shall 
issue  without  special  designation  of  the  person  to  be  seized,  a  warrant  de- 
scribing the  accused  as  "a  person  whose  name  is  not  known,  but  whose  per- 
son is  well  known,  of  V.,  of  the  county  of  K.,"  is  insufficient  to  protect  an  offi- 
cer making  an  arrest  thereunder. — Harwood  v.  Siphers,  247. 

Officer  has  no  power  to  arrest,  without  a  warrant,  for  a  past  offense,  not  a 
felony,  upon  information  or  suspicion  thereof. — Quinn  v.  Heisel,  257. 

Arrest  by  officer  without  a  warrant  is  not  justified  by  a  threat  or  other 
indication  of  a  breach  of  the  peace  unless  the  facts  warrant  a  belief  that 
the  arrest  is  necessary  to  prevent  the  commission  of  the  offense,  without 
reference  to  any  past  similar  offense  of  which  the  person  may  have  been 
guilty  before  the  officer's  arrival. — Quinn  v.  Heisel,  257. 

Words  not  in  themselves  actionable  may  be  actionable  as  causing  special 
damage,  when  spoken  of  one  holding  a  public  office,  by  exposing  him  to  the 
hazard  of  losing  his  office ;  but  no  action  can  be  maintained,  for  such  words 
spoken  after  the  office  had  expired. — Forward  v.  Adams,  315. 

Assessors  of  taxes  act  judicially  in  fixing  the  value  of  taxable  property, 
where  it  is  not  sworn  to  as  authorized  by  law ;  and  they  are  not  liable 
to  a  civil  action  by  one  over  whose  person  and  property  they  had  jurisdiction 
for  the  purpose  of  assessment,  for  failing  to  make  any  allowance  or  de- 


7-16  INDEX. 

duction  on  account  of  an  exemption  of  a  certain  amount  to  which  he  was 
entitled,  or  for  assessing  his  property  at  a  higher  rate  than  that  of  others. 
— Weaver  v.  Devendorf,  535. 

Public  officer  not  liable  to  civil  action  for  judicial  determination,  however 
erroneous  or  malicious,  if  he  had  jurisdiction  of  the  case  and  was  authorized 
to  determine  it. — Bradley  v.  Fisher,  525 ;  Weaver  v.  Devendorf,  537. 

Where  the  duty  is  imposed  by  law  on  the  mayor  and  common  council 
of  a  city  to  make  and  repair  sewers  in  the  city,  the  duty  of  determining  where 
sewers  shall  be  located  and  their  dimensions  is,  in  its  nature,  judicial,  and 
an  entire  omission  to  construct  a  sewer,  or  a  failure  to  make  it  of  sufficient 
capacity,  creates  no  liability  on  the  part  of  the  city. — McCarthy  v.  City  of 
Syracuse,  540. 

But  where  a  sewer  has  been  determined  upon  and  Is  constructed,  the  duties 
of  constructing  it  properly  and  keeping  it  in  good  condition  and  repair  are 
ministerial,  and  negligence  in  the  performance  of  these  duties  will  render 
the  city  liable  for  damages  resulting  therefrom. — McCarthy  v.  City  of  Syra- 
cuse, 540. 

A  postmaster  is  not  liable  for  the  loss  of  a  letter  occasioned  by  the  negli- 
gence or  wrongful  conduct  of  his  clerk,  appointed  and  sworn  as  required  by 
law,  although  selected  by  him  and  subject  to  his  orders. — Keenan  v.  South- 
worth,  543. 

A  sheriff  or  constable  who,  under  an  execution,  seizes  and  sells  property 
not  belonging  to  the  judgment  debtor,  though  in  his  possession,  is  a  mere 
trespasser,  and  liable  to  an  action  by  the  owner  of  the  property  without  any 
demand  before  suit. — Boulware  v.  Craddock,  544. 

Levy  of  execution  by  breaking  outer  door  of  dwelling  of  execution  debtor 
invalid,  and  the  fact  that  the  sheriff  making  such  levy  sold  the  goods 
and  paid  the  proceeds  to  the  execution  creditor  is  not  available  to  him  in  miti- 
gation of  damages. — Welsh  v.  Wilson,  546. 

Warrant  regular  on  its  face  is  sufficient  authority  to  a  constable  to  make 
the  arrest  commanded  therein,  although  he  has  knowledge  of  facts  which 
render  the  warrant  void  for  want  of  jurisdiction. — People  v.  Warren,  547. 

OILS. 

Negligence  of  railroad  In  allowing  platform  to  become  saturated  with  oil  is 
not  proximate  cause  of  fire  caused  by  third  person  throwing  lighted  match 
thereon. — Stone  v.  Boston  &  A.  R.  Co.,  98. 

OPINIONS. 

A  statement  by  a  warehouseman  in  a  circular  soliciting  patronage  that 
the  exterior  of  his  warehouse  is  fireproof  is  the  statement  of  a  matter 
of  fact,  not  a  mere  expression  of  opinion,  and  If  made  by  him  with 
knowledge  that  it  was  false,  and  with  intent  to  deceive,  a  person  induced 
thereby  to  store  in  the  warehouse  property  which  is  destroyed  by  fire  com- 
municated to  portions  of  the  exterior  which  are  not  fireproof,  may  recover 
from  the  warehouseman  for  the  loss  so  incurred. — Hickey  v.  Morrell,  652. 

Statements  amounting  merely  to  expressions  of  opinion  not,  in  general, 
ground  of  action  for  fraud ;  but  where  they  are  to  be  regarded  as  affirmations 
of  fact,  then,  if  false,  an  action  can  be  maintained  on  them. — Hickey  v.  Mor- 
rell, 653. 


INDEX.  747 

Representations  made  by  a  party  to  a  contractor  dredging  a  harbor,  after 
soundings  had  been  taken  for  the  purpose  of  ascertaining  the  character  of 
the  work  and  a  chart  thereof  made,  with  which  the  party  making  the  repre- 
sentations was  familiar  and  the  other  party  not,  were  not  mere  expressions 
of  opinion,  but  were  matters  of  fact  which  could  be  relied  on,  though  not  ac- 
companied with  specific  statements  as  to  actual  measurements  having  been 
made. — Kingston  v.  L.  P.  &  J.  A.  Smith  Co.,  605. 

PARENT  AND  CHILD. 

Corporal  punishment  of  child  by  parent  in  a  reasonable  manner  Justifiable. 
— Sheehan  v.  Sturges,  211. 

Action  maintainable  by  father  for  seduction  of  minor  daughter,  although 
at  the  time  she  is  in  the  employ  of  and  residing  with  another,  without  any 
intention  to  return  to  her  father,  if  the  father  has  not  relinquished  his  legal 
right  to  her  services. — Mulvehall  v.  Millward,  552. 

Parent  held  not  guilty  of  negligence  imputable  to  child. — Mangam  v.  Brook- 
lyn R.  Co.,  578. 

Where  an  infant  of  tender  years  is  injured  through  the  negligence  of  an- 
other, the  negligence  of  the  parents  is  imputable  to  the  infant. — Maugam  v. 
Brooklyn  R.  Co.,  580. 

Negligence  of  parent  immaterial,  where  child  was  exercising  what  would  be 
regarded  as  ordinary  care  in  an  adult. — McGarry  v.  Loomis,  584. 

PARTIES. 

See  "Joint  Tort-Feasors." 

PASSAGEWAY. 

Using  violence  to  another  to  force  a  passage,  in  a  rude,  Inordinate  manner, 
or  any  struggle  about  a  passage  to  a  degree  that  may  do  hurt,  is  a  battery.— 
Cole  v.  Turner,  191. 

Obstruction  in  one  direction  only,  leaving  the  way  open  in  another  direc- 
tion, not  an  imprisonment — Bird  v.  Jones,  215. 

PASSENGERS. 

May  be  expelled  by  railroad  company  from  its  train  for  wanton  refusal  to 
comply  with  rule  requiring  surrender  of  tickets  on  the  train. — Illinois  Cent. 
R.  Co.  v.  Whittemore,  208 ;  Lynch  v.  Metropolitan  El.  Ry.  Co.,  224. 

Regulation  by  a  railroad  company  that  a  passenger,  who  fails,  before 
leaving  its  trains  or  premises,  to  produce  a  ticket  or  pay  his  fare,  shall  be 
detained  until  he  does  so,  is  illegal. — Lynch  v.  Metropolitan  El.  Ry.  Co.,  223. 

Detention  of  passenger  by  carrier,  for  the  purpose  of  enforcing  payment  of 
fare,  illegal,— Lynch  v.  Metropolitan  El.  Ry.  Co.,  223. 

PERJURY. 

Rule  that  there  can  be  no  conviction  of  perjury  on  unaided  testimony  of  one 
witness  is  applicable  only  to  criminal  proceedings. — Rice  v.  Coolidge,  27. 


748  INDEX. 

One  who  suborns  witnesses  to  swear  falsely  to  defamatory  statements  con- 
cerning another,  in  a  suit  to  which  neither  of  them  is  a  party,  is  liable 
to  an  action  therefor  by  the  person  whose  character  is  so  defamed. — Rice  v. 
Coolidge,  25. 

PHYSICIANS. 

To  say  of  a  physician.  In  regard  to  his  treatment  of  children  not  over 
three  years  of  age,  that  he  killed  them  by  giving  them  teaspoonful  doses  of 
calomel,  is  actionable  per  se,  as  imputing  to  him  gross  ignorance  of  his  pro- 
fession ;  damage  being  presumed  from  the  nature  of  the  charge. — Secor  v. 
Harris,  320. 

PLEADING. 

Recovery  must  be  on  proof  of  allegations,  not  of  an  Independent  cause  of 
action. — Guest  v.  Reynolds,  5. 

Where  special  damage  from  false  publication  concerning  statue  was  loss 
of  its  sale,  evidence  of  its  value  as  scientific  curiosity  is  immaterial. — Gott  v. 
Pulsifer,  70. 

In  an  action  against  an  officer  for  false  imprisonment,  defense  that  a  felony 
has  been  committed  must  be  specifically  pleaded. — White  v.  MjcQueen,  253. 

The  malicious  prosecution  of  a  civil  action  without  probable  cause,  in  which 
a  complaint  was  filed  containing  false  and  defamatory  matter,  is  ground  for 
an  action  for  malicious  prosecution. — Wade  v.  National  Bank  of  Commerce  of 
Tacorna,  285. 

To  show  that  words  were  meant  to  impute  larceny,  extrinsic  circumstances 
must  be  shown  by  a  colloquium. — Stitzell  v.  Reynolds,  380. 

POISONS. 

Dealer  in  medicines,  selling  as  a  harmless  remedy  a  poison  of  similar  ap- 
pearance, liable  for  injuries  caused  thereby  to  a  patient  to  whom  it  was  ad- 
ministered, although  there  was  no  privity  between  them. — Thomas  v.  Win- 
chester, 160. 

POLICE  POWER. 

Legislature  may  authorize  use  of  bells,  whistles,  etc.,  by  employers  for  pur- 
pose of  giving  notice  to  their  workmen,  under  regulation  of  municipal  au- 
thorities, although  thereby  injury  is  caused  to  individuals,  such  as  a  court 
of  equity  would  restrain. — Sawyer  v.  Davis,  469. 

POSSESSION. 

Defense  of  possession  of  property  a  justification  of  assault  and  battery. — 
Scribner  v.  Beach,  197;  Commonwealth  v.  Donahue,  202. 

Property  wrongfully  taken  may  be  recovered  by  use  of  reasonable  force. 
— Commonwealth  v.  Donahue,  202. 

The  gist  of  the  action  of  trespass  to  lands  is  the  injury  to  the  possession, 
and  he  only  can  maintain  the  action  who  either  has  or  is  entitled  to  the  pos- 
session. Where  the  land  is  in  the  actual  and  exclusive  occupation  of  the 


INDEX.  749 

owner's  tenant,  the  owner  cannot  maintain  the  action. — Halligan  v.  Chicago 
&  R.  I.  R.  Co.,  398. 

Tlie  owner  of  a  dog  loaned  by  him  to  another  may  maintain  trespass  for 
the  killing  of  the  dog  by  a  third  person  while  so  loaned.  Actual  possession 
is  not  necessary  to  the  maintenance  of  the  action. — White  v.  Brantley,  489. 

Where  personal  property  is  left  in  the  possession  of  another  under  an 
agreement  for  a  specified  time,  the  owner  cannot  maintain  trespass  against 
a  third  person  for  taking  such  property  during  such  time. — Lunt  v.  Brown, 
495. 

A  person  cannot  maintain  trespass  for  taking  personal  property,  unless 
at  the  time  of  the  taking  he  had  either  actual  or  constructive  .possession  or 
a  right  to  the  immediate  possession. — Lunt  v.  Brown,  495. 

Trover  will  not  lie  for  the  conversion  of  personal  property  unless  at  the 
time  of  the  conversion  the  possession  or  right  to  the  Immediate  possession 
was  in  plaintiff. — Gordon  v.  Harper,  511. 

POST  OFFICE. 

A  postmaster  Is  not  liable  for  the  loss  of  a  letter  occasioned  by  the  negligence 
or  wrongful  conduct  of  his  clerk,  appointed  and  sworn  as  required  by  law, 
although  selected  by  him  and  subject  to  his  orders. — Keenan  v.  Southworth, 
543. 

PRESCRIPTION. 

Easement  of  light  and  air  not  acquired  by  prescription  of  20  years. — 
Guest  v.  Reynolds,  4 ;  Miller  v.  Woodhead,  7. 

Tenant  or  owner  not  obliged  to  fence  against  adjoining  owner  or  occupier, 
at  common  law,  except  by  prescription ;  and,  in  that  case,  only  against 
cattle  rightfully  in  the  adjoining  close. — Lawrence  v.  Combs,  414. 

A  person  cannot,  by  erecting  a  nuisance  upon  his  land  adjoining  vacant 
land  owned  by  another,  control  or  lessen  the  latter's  use  of  the  land,  unless 
he  can  acquire  such  right  by  prescription. — Campbell  v.  Seaman,  423. 

Where  the  injury  to  shrubbery  on  plaintiff's  premises  is  caused  by  the 
burning  of  anthracite  coal  in  a  brick  kiln  on  adjoining  premises  by  de- 
fendant, a  prescriptive  right  to  continue  the  nuisance  must  be  based  upon 
20  years'  actual  use  of  such  coal,  and  not  20  years'  use  of  the  kiln. — Camp- 
bell v.  Seaman,  424. 

PRESUMPTIONS. 

Where  there  Is  a  distinct  legal  wrong,  law  will  presume  that  damage  fol- 
lows as  proximate  result — Chicago,  W.  D.  Ry.  Co.  v.  Rend,  66. 

In  such  a  case  as  the  speaking  of  words  charging  a  physician  with  gross 
ignorance  and  unskillfulness  in  his  profession,  the  presumption  of  dam- 
age being  violent,  and  the  difficulty  of  proving  it  considerable,  the  law 
supplies  the  defect  by  converting  the  presumption  into  proof;  and  damage 
is  presumed  to  result  from  the  speaking  of  the  words. — Secor  v.  Harris,  321. 

The  presumption  of  negligence  or  prima  facie  liability  of  the  owner  of  a 
vicious  animal  by  which  another  person  is  injured,  arising  from  the  fact  of 
its  vicious  propensity  and  the  owner's  knowledge  thereof,  cannot  be  rebutted 


750  INDEX. 

by  proof  of  any  amount  of  care  on  the  part  of  the  owner  In  keeping  or  re- 
straining the  animal. — Muller  v.  McKesson,  485. 

In  an  action  of  trover  for  the  removal  by  defendant  from  a  Jewel  of 
precious  stones,  the  value  of  which  is  not  known,  and  which  defendant  does 
not  produce,  the  strongest  presumption  Is  against  him,  and  the  measure  of 
damages  is  the  value  of  the  best  stones  that  would  fit  the  socket. — Armory  v. 
Delamirie,  509. 

PRINCIPAL  AND  AGENT. 

Where  an  agent  parts  with  the  property  of  his  principal  In  a  way  or  for 
a  purpose  not  authorized,  he  is  liable  for  a  conversion ;  but  if  he  parts  with 
It  in  accordance  with  his  authority,  although  at  a  less  price,  or  if  he  mis- 
applies the  avails,  or  takes  inadequate  for  sufficient  security,  he  is  not  liable 
for  a  conversion. — Laverty  v.  Snethen,  499. 

PRIVILEGED   COMMUNICATIONS. 

See  "Libel" ;   "Slander." 

Defamatory  words  published,  spoken  in  the  course  of  judicial  proceedings, 
are  not  actionable  if  they  are  applicable  and  pertinent  to  the  subject  of  in- 
quiry.— Rice  v.  Coolidge,  20. 

A  libelous  letter  to  an  unmarried  woman  concerning  her  suitor,  not  written 
at  her  request,  but  appearing  to  have  been  written  at  the  instance  of  mutual 
friends,  for  the  purpose  of  preventing  her  marriage  to  him,  is  not  privileged 
by  reason  of  previous  friendship,  nor  by  reason  of  a  request  made  four 
years  before,  and  before  the  acquaintance  of  the  suitor  was  made,  for  in- 
formation of  anything  known  to  the  writer  concerning  any  young  man  the  per- 
son addressed  "went  with,"  or  any  young  man  in  the  place. — Byaru  v.  Collins, 
362. 

Defamatory  words  are  not  privileged  because  uttered  in  strictest  confidence 
by  one  friend  to  another,  nor  because  they  are  uttered  after  the  most  ur- 
gent solicitation,  nor  because  the  interview  in  which  they  are  uttered  is  ob- 
tained at  the  instance  of  the  person  slandered. — Byam  v.  Collins,  305. 

A  communication,  by  proprietors  of  a  mercantile  agency,  to  their  subscrib- 
ers, of  a  report  of  the  failure  of  certain  merchants,  is  privileged  only  when 
made  in  good  faith,  to  those  having  an  interest  in  the  information. — Sunder- 
lin  v.  Bradstreet,  365. 

A  newspaper  article,  charging  a  candidate  for  office  with  forgery,  cheating, 
and  stealing,  is  not  privileged,  even  if  published  with  the  belief  of  the 
truth  of  the  charge. — Bronson  v.  Bruce,  309. 

False  charges  of  crime  against  a  candidate  for  office,  though  made  without 
malice  and  in  an  honest  belief  of  their  truth,  are  not  privileged. — Bronson  v. 
Bruce,  372. 

Information  given  to  the  governor  of  a  state  for  the  purpose  of  influencing 
his  action  on  a  bill  which  has  passed  the  legislature  is  prima  facie  privileged ; 
but  if  the  communication  contains  defamatory  matter,  and  is  unnecessarily 
published  to  others,  such  publication  is  not  privileged. — Woods  v.  Wiman,  375. 

As  to  slanderous  statements  made  by  parties,  counsel,  or  witnesses  in  the 
course  of  judicial  proceedings,  and  libelous  charges  in  pleadings,  affidavits, 
or  other  papers  used  in  the  course  of  the  prosecution  or  defense  of  an  action. 


INDEX.  751 

the  privilege  Is  absolute,  however  malicious  the  intent,  or  however  false  the 
charge  may  have  been. — Moore  v.  Manufacturers'  Nat.  Bank,  377. 

But  the  privilege  does  not  extend  to  slanderous  publications  plainly  irrele- 
vant and  impertinent,  voluntarily  made,  and  which  the  party  making  them 
could  not  reasonably  have  supposed  to  be  relevant — Moore  T.  Manufacturers' 
Nat  Bank,  378. 

PRIVITY. 

In  cases  of  contract,  where  there  is  no  legal  duty  Independent  of  the  con- 
tract, one  not  in  privity  with  a  party  to  the  contract  cannot  recover  against 
him  in  tort  for  an  injury  involving  a  breach  of  the  contract — Winterbottom 
v.  Wright,  155. 

Dealer  in  medicines,  selling  as  a  harmless  remedy  a  poison  of  similar 
appearance,  liable  for  injuries  caused  thereby  to  a  patient  to  whom  it  was 
administered,  although  there  was  no  privity  between  them. — Thomas  v.  Win- 
chester, 165. 

PROBABLE  CAUSE. 

Where  there  Is  no  conflict  in  the  evidence  in  actions  for  false  imprisonment 
and  malicious  prosecution,  the  question  of  probable  cause  is  one  of  law. — 
Burns  v.  Erben,  251. 

Where  facts  are  admitted,  probable  cause  is  a  question  of  law. — White  v. 
McQueen,  254. 

Probable  cause  is  reasonable  ground  of  suspicion,  supported  by  circum- 
stances sufficient  to  warrant  a  cautious  man  in  the  belief  that  the  person 
accused  is  guilty  of  the  offense  charged. — Foshay  v.  Ferguson,  268. 

Probable  cause,  which  will  justify  a  criminal  accusation,  is  a  reasonable 
ground  of  suspicion,  supported  by  circumstances  sufficiently  strong  in  them- 
selves to  warrant  a  cautious  man  in  his  belief  that  the  person  accused  is 
guilty  of  the  offense  with  which  he  is  charged.  It  does  not  depend  upon 
the  guilt  or  innocence  of  the  accused,  or  upon  the  fact  whether  a  crime  has 
been  committed. — Carl  v.  Ayers,  271. 

To  sustain  an  action  for  malicious  abuse  of  process  of  the  court  in  order 
illegally  to  compel  a  party  to  give  up  his  property,  it  need  not  be  averred 
that  the  process  so  improperly  employed  was  sued  out  without  reasonable  or 
probable  cause. — Grainger  v.  Hill,  291. 

PROCESS. 

See  "Officers." 

One  who  instigates  and  procures  an  officer  to  arrest  another  under  a  void 
warrant  is  liable  to  an  action  therefor,  although  the  officer  is  protected. — 
Rice  v.  Coolidge,  27. 

Use  of  force  by  officer  necessary  to  overcome  unlawful  resistance  to  service 
of  process  justifiable. — Hager  v.  Danforth,  214. 

Justice  issuing  warrant  for  arrest  of  person  on  charge  of  crime,  without  ju- 
risdiction, is  liable  for  false  imprisonment — Blodgett  v.  Race,  227. 

Making  a  complaint  to  a  magistrate  does  not  render  complainant  liable  to 
trespass  for  acts  done  under  a  warrant  issued  by  the  magistrate,  even  if  the 
magistrate  has  no  jurisdiction. — Barker  v.  Stetson,  235. 


7o2  INDEX. 

A  complainant,  obtaining  a  warrant  from  a  magistrate  having  no  Jurisdic- 
tion of  the  cause  and  inducing  an  officer  to  arrest  defendant  thereon,  is  liable, 
even  though  the  warrant  is  valid  on  its  face. — Emery  v.  Hapgood,  236. 

An  officer  making  an  arrest  under  process  issued  by  a  magistrate  is  liable 
for  false  imprisonment,  if  the  process  is  void  on  its  face. — Elsemore  v.  Long- 
fellow, 240. 

Complaint  insufficient  to  justify  warrant  of  arrest,  so  as  to  protect  officer. 
— Elsemore  v.  Longfellow,  240. 

Liability  for  arrest  under  void  process  attaches  when  wrong  is  committed, 
without  such  process  being  vacated  or  set  aside;  but  process  merely  irregu- 
lar must  be  vacated  or  annulled  before  an  action  can  be  maintained  for  dam- 
ages from  its  enforcement. — Fischer  v.  Langbein,  242. 

Void  process  is  such  as  the  court  has  no  power  to  award,  or  has  not  ac- 
quired jurisdiction  to  issue  in  the  particular  case,  or  which  does  not,  in  some 
material  respect,  comply  in  form  with  the  legal  requisites  of  such  process, 
or  which  loses  its  vitality  in  consequence  of  non-compliance  with  a  con- 
dition subsequent,  obedience  to  which  is  rendered  essential. — Fischer  v.  Lang- 
bein, 243. 

Irregular  process  is  such  as  a  court  has  general  jurisdiction  to  issue,  but 
which  is  unauthorized  in  the  particular  case  by  reason  of  the  existence  or 
nonexistence  of  some  fact  or  circumstance  rendering  it  improper  in  such  a 
case. — Fischer  v.  Langbein,  243. 

Order  or  process  based  on  a  decision  of  the  court  involving  the  exercise  of 
the  judicial  function,  although  afterwards  set  aside  as  erroneous,  is  not  void, 
and  does  not  subject  the  party  procuring  it  to  an  action  for  damages  there- 
by inflicted. — Fischer  v.  Langbein,  245. 

Under  a  constitutional  provision  that  no  warrant  to  seize  any  person  shall 
issue  without  special  designation  of  the  person  to  be  seized,  a  warrant  de- 
scribing the  accused  as  "a  person  whose  name  is  not  known,  but  whose  per- 
son is  well  known,  of  V.,  of  the  county  of  K.,"  is  insufficient  to  protect  an  offi- 
cer making  an  arrest  thereunder. — Harwood  v.  Siphers,  247. 

Failure  of  plaintiff  in  civil  action  to  have  writ  returned,  or  to  appear 
at  the  court  to  which  it  is  returnable,  a  final  determination  of  the  action. — 
Cardival  v.  Smith,  275. 

An  action  for  maliciously  suing  out  an  excessive  attachment  may  be  brought 
before  the  termination  of  the  attachment  suit,  where  the  validity  of  the  debt 
on  which  the  attachment  issued  is  not  in  dispute. — Zinn  v.  Rice,  288. 

Action  maintainable  for  malicious  abuse  of  process. — Grainger  v.  Hill,  289. 

That  a  criminal  prosecution  has  not  been  terminated  is  no  defense  to  an 
action  for  abuse  of  process  in  such  prosecution. — White  v.  Apsley  Rubber  Co., 
293. 

An  action  lies  for  abuse  of  process  where  one  arrested  under  criminal  war- 
rant for  malicious  injury  to  personalty  is  not  released  until  he  abandons  a 
claim  of  right  to  occupy  the  certain  house. — White  v.  Apsley  Rubber  Co.,  293. 

Breaking  of  inner  door,  by  officer,  to  serve  process,  justifiable. — Williams  v. 
Spencer,  412. 

Not  lawful  for  officer,  in  order  to  serve  civil  process,  to  break  open  outer 
door  of  dwelling  of  the  party,  although  such  dwelling  is  also  used  by  the  party 
for  transaction  of  business. — Welsh  v.  Wilson,  546. 


INDEX.  753 

A  warrant  regular  on  Its  face  is  a  sufficient  authority  to  a  constable 
to  make  the  arrest  commanded  therein,  although  he  has  knowledge  of  facts 
which  render  the  warrant  void  for  want  of  jurisdiction. — People  v.  Warren, 

547. 

PROMISSORY  NOTES. 

See  "Negotiable  Instruments." 

PROPERTY. 

Light  and  air  not  subjects  of  property  beyond  moment  of  actual  occu- 
pancy.— Guest  v.  Reynolds,  4. 

In  subterranean  waters  is  presumed  to  be  in  owner  of  the  fee. — Ocean  Grove 
Camp  Meeting  Ass'n  v.  Commissioners  of  Asbury  Park,  59. 

Action  for  libel  concerning  plaintiff's  property  not  maintainable  without 
proof  of  special  damage. — Gott  v.  Pulsifer,  70. 

Defense  of  property  a  justification  of  an  assault  and  battery,  unless  un- 
reasonable force  is  used. — Scribner  v.  Beach,  197 ;  Commonwealth  v.  Donahue, 
202. 

The  unreasonable,  unwarrantable,  or  unlawful  use  of  one's  own  property, 
producing  material  annoyance,  inconvenience,  discomfort,  or  hurt  to  his  neigh- 
bor, constitutes  a  nuisance. — Campbell  v.  Seaman,  418. 

Owner  of  land  has  an  absolute  property  in  surface  water  thereon  before  it 
leaves  the  land  and  becomes  part  of  a  definite  watercourse. — Barkley  v. 
Wilcox,  433. 

Riparian  owner  has  no  property  in  the  water  of  the  stream,  but  a  simple 
use  of  it  while  it  passes. — Clinton  v.  Myers,  437. 

The  finder  of  an  article  has  such  a  property  therein  as  will  enable  him  to 
keep  it  as  against  all  but  the  rightful  owner,  and  he  may  maintain  trover 
for  its  conversion. — Armory  v.  Delamirie,  509. 

PROXIMATE  OR  REMOTE  CAUSE. 

Action  for  tort  not  maintainable  for  remote,  contingent,  or  indefinite  dam- 
ages.— Lamb  v.  Stone,  19;  Clark  v.  Chambers,  100;  Vandenburgh  v.  Truax, 
85 ;  Lowery  v.  Manhattan  Ry.  Co.,  90 ;  Milwaukee  &  St  P.  Ry.  Co.  v.  Kellogg, 
78;  Bowen  v.  Hall,  115. 

To  warrant  a  finding  that  negligence,  or  an  act  not  amounting  to  wanton 
wrong,  is  the  proximate  cause  of  an  injury,  it  must  appear  that  the  in- 
jury was  the  natural  and  probable  consequence  of  the  negligence  or  wrong- 
ful act,  and  that  it  ought  to  have  been  foreseen  in  the  light  of  attendant 
circumstances.  When  there  is  no  intermediate  efficient  cause,  disconnected 
from  the  primary  fault,  and  self-operating,  which  produced  the  injury,  the 
original  wrong  must  be  considered  as  reaching  to  the  effect,  and  proximate 
to  it. — Milwaukee  &  St.  P.  Ry.  Co.  v.  Kellogg,  77. 

To  make  a  negligent  act  the  proximate  cause  of  an  Injury,  it  is  not  neces- 
sary that  particular  injury  and  particular  manner  in  which  it  occurred  might 
reasonably  have  been  expected  to  follow. — City  of  Dixon  v.  Scott,  80. 
CHASE  (2o  ED.) — 48 


754  INDEX. 

Damage  to  cargo  by  water  escaping  through  pipe  of  steam  boiler,  In  con- 
sequence of  pipe  having  been  cracked  by  frost,  Is  due  to  negligence  of  captain 
and  not  act  of  God. — Siordet  v.  Hall,  83. 

One  who  does  an  illegal  or  mischievous  act,  likely  to  prove  Injurious  to 
others,  is  answerable  for  the  consequences  directly  and  naturally  resulting 
therefrom,  although  he  did  not  intend  to  do  the  particular  injury  which 
followed. — Vandenburgh  v.  Truax,  85. 

Where  fire  is  allowed  to  fall  from  a  locomotive  of  an  elevated  railway  on 
a  horse  and  his  driver  in  the  street  below,  the  immediate  running  away 
of  the  horse  and  his  collision  with  a  person  on  the  sidewalk  are  natural 
and  probable  consequences,  and  the  wrongful  act  is  the  proximate  cause 
of  the  injury  to  such  person,  notwithstanding  error  of  judgment  of  the  driver 
in  endeavoring  to  manage  and  control  the  horse. — Lowery  v.  Manhattan  Ry. 
Co.,  90. 

Where  child  fell  through  a  bridge  into  canal,  in  consequence  of  negligent 
condition  of  bridge  and  without  contributory  negligence  of  parents  of  child, 
end  the  father,  in  an  effort  to  rescue  the  child,  plunged  into  the  canal,  and 
both  were  drowned,  the  death  of  both  is  attributable  to  negligence  in  maintain- 
ing bridge. — Gibney  v.  State,  93. 

The  rule  that,  where  an  intelligent  responsible  human  being  has  intervened 
between  the  original  cause  and  the  resulting  damage,  the  law  will  not  look 
behind  him,  is  not  true  where  it  was  the  duty  of  the  original  wrongdoer  to 
anticipate  and  provide  against  such  intervention. — Stone  v.  Boston  &  A.  R. 
Co.,  97. 

Allowing  railroad  platform  to  become  saturated  with  oil  is  not  proximate 
cause  of  fire  caused  by  third  person  throwing  lighted  match  thereon. — Stone  v. 
Boston  &  A.  R.  Co.,  98. 

It  seems  that  the  liability  arising  from  unlawful  acts,  negligence,  or  omis- 
sions of  duty  is  confined  to  those  consequences  only  which,  in  the  ordinary 
course  of  things,  were  likely  to  arise,  and  which  might  therefore  reasonably  be 
expected  to  arise,  or  which  it  was  contemplated  by  the  parties  might  arise, 
from  such  acts,  negligence,  or  omissions. — Clark  v.  Chambers,  106. 

Wherever  a  man  does  an  act  which  in  law  and  in  fact  is  a  wrongful  act, 
and  such  an  act  as  may,  as  a  natural  and  probable  consequence  of  it,  produce 
injury  to  another,  and  which  in  the  particular  case  does  produce  such  an  in- 
jury, an  action  on  the  case  will  lie.  If  these  conditions  are  satisfied,  the  ac- 
tion does  not  the  less  lie  because  the  natural  and  probable  consequence  of 
the  act  complained  of  is  an  act  done  by  a  third  person,  or  because  such  act 
so  done  by  the  third  person  is  a  breach  of  duty  or  contract  by  him,  or  an 
act  illegal  on  his  part,  or  an  act  otherwise  imposing  an  actionable  liability 
on  him. — Bowen  v.  Hall,  115. 

Cancer  of  the  breast,  if  found  to  be  the  result  of  an  injury  to  plaintiff  caused 
by  defendant's  negligence,  may  be  considered  in  estimating  damages  in  an 
action  for  such  injury. — Baltimore  City  Pass.  Ry.  Co.  v.  Kemp,  135. 

Remote  negligence  on  the  part  of  a  plaintiff  is  no  answer  to  his  action 
for  an  injury,  the  proximate  cause  of  which  is  attributable  to  want  of 
proper  care  on  defendant's  part. — Davies  v.  Mann,  571. 

Witness  not  liable  in  damages  for  evidence  given  by  him  In  a  suit,  although 
false,  by  which  another  is  injured. — Mobile  Life  Ins.  Co.  v.  Brame,  625. 

Action  not  maintainable  by  contractor  for  support  of  town  paupers  against 
a  person  inflicting  personal  injury  upon  such  a  pauper,  on  the  ground  that 


INDEX.  755 

thereby  the  contractor  was  subjected  to  extra  expenditure. — Mobile  Life  Ins. 
Co.  v.  Brame,  625. 

Action  not  maintainable  by  one  party  to  a  contract  against  a  third  per- 
son persuading  the  other  party  to  the  contract  not  to  perform  It — Mobile 
Life  Ins.  Co.  v.  Brame,  625. 

An  Insurance  company  has  no  right  of  action  against  the  person  who  felo- 
niously or  negligently  causes  the  death  of  a  person  insured  by  It,  for  the 
loss  thereby  caused  the  company,  such  loss  being  too  remote  and  indirect. — 
Mobile  Life  Ins.  Co.  v.  Brame,  625. 

PUBLICATION. 

To  sustain  an  action  for  slander,  the  defamatory  words  must  have  been 
spoken  in  the  presence  or  hearing  of  some  person  other  than  the  plain- 
tiff.— Terwilliger  v.  Wands,  326;  Shefflll  v.  Van  Deusen,  341. 

That  the  words  were  spoken  In  a  public  place  Is  immaterial. — Shefflll  v. 
Van  Deusen,  341. 

Where  a  letter,  containing  defamatory  matter,  is  dictated  by  the  author 
to  a  clerk,  who  takes  it  down  in  shorthand,  and  then  writes  it  out  in  full 
by  means  of  a  typewriting  machine,  and  the  letter  thus  written  Is  copied  by 
another  clerk  in  a  copying  press,  there  is  a  publication  of  the  letter  to  both, 
and  the  occasion  is  not  privileged. — Pullman  v,  Walter  Hill  &  Co.,  343. 

And  where  such  letter  is  sent  by  the  author  in  an  envelope  addressed  to 
the  firm,  and  is  opened  by  a  clerk  of  the  firm,  in  the  ordinary  course  of 
business,  and  read  by  other  clerks  of  the  firm,  there  is  a  publication  of  the 
letter  to  such  clerks,  and  the  occasion  is  not  privileged. — Pullman  v.  Walter 
Hill  &  Co.,  343. 

Information  given  to  the  governor  of  the  state  for  the  purpose  of  influ- 
encing his  action  on  a  bill  which  has  passed  the  Legislature  is  prima  facie 
privileged ;  but  if  the  communication  contains  defamatory  matter,  and  is  un- 
necessarily published  to  others,  such  publication  is  not  privileged. — Woods  v. 
Wiman,  375. 

PUNISHMENT. 

Of  pupil  by  teacher,  In  a  reasonable  manner,  justifiable. — Sheehan  v.  Sturges, 
210. 

QUESTIONS  OF  LAW  OR  OF  FACT. 

Negligence,  in  ordinary  cases,  a  question  for  the  jury,  but  may  be  a  question 
for  the  court  where  there  is  no  conflict  of  testimony,  and  the  standard  of  duty 
or  the  rights  of  the  parties  have  been  judicially  defined. — Gramlich  v.  Wurst, 
12. 

What  is  the  proximate  cause  of  an  injury  is  ordinarily  a  question  for 
the  jury. — Milwaukee  &  St.  P.  Ry.  Co.  v.  Kellogg,  77. 

What  is  reasonable  force,  which  may  be  used  in  retaking  possession  of 
property  wrongfully  taken  by  another,  is  a  question  of  fact  for  a  jury. — Com- 
monwealth v.  Donahue,  203. 

Whether  a  regulation  of  a  railroad  company  requiring  passengers  to  surren- 
der their  tickets  before  leaving  the  trains  Is  reasonable  is  a  question  for  the 
court,  either  with  or  without  testimony  on  the  subject;  to  submit  it  to  the 


756  INDEX. 

jury  Is  error. — Illinois  Cent.  R.  Co.  v.  Whittemore,  208;  Lynch  v.  Metropolitan 
El.  Ry.  Co.,  225. 

The  reasonableness  of  the  punishment  administered  by  a  teacher  to  his 
pupil  is  purely  a  question  of  fact. — Sheehan  v.  Sturges,  210. 

Where  there  is  no  conflict  in  the  evidence  in  actions  for  false  imprisonment 
and  malicious  prosecution,  the  question  of  probable  cause  is  one  of  law. — 
Burns  v.  Erben,  251. 

Where  facts  are  admitted,  probable  cause  is  a  question  of  law. — White  v. 
McQueen,  254. 

In  a  civil  action  for  libel  in  the  state  of  New  York,  where  the  publication 
is  admitted  and  the  words  are  unambiguous,  the  question  of  libel  or  no  libel 
is  one  of  law,  which  the  court  must  decide. — Moore  v.  Francis,  332. 

Where,  on  the  evidence  in  an  action  for  slander  for  words  spoken  in  answer 
to  an  inquiry,  it  is  a  question  of  fact  whether  defendant  understood  the 
person  making  such  inquiry  as  asking  for  information  to  regulate  his  own 
conduct,  this  should  be  submitted  to  the  jury  for  consideration  before  they 
are  to  consider  the  question  of  malice  in  answering. — Bromage  v.  Prosser,  339. 

Whether  a  libelous  communication  is  privileged  is  a  question  of  law. — 
Byam  v.  Collins,  359. 

Whether  a  servant,  for  whose  tortious  act  suit  is  bnnight  against  his  mas- 
ter, was,  in  doing  such  act,  while  apparently  engaged  in  executing  the  mas- 
ter's orders,  in  fact  pursuing  his  own  purposes,  without  reference  to  his 
master's  business,  and  was  acting  maliciously  and  willfully,  is  ordinarily  a 
question  for  the  jury  on  all  the  facts  and  circumstances  proved. — Rounds  v. 
Delaware,  L.  &  W.  R.  Co.,  605. 

RAILROADS. 

See  "Elevated  Railroads" ;   "Master  and  Servant" ;   "Street  Railroads." 

A  statute  providing  that  a  railroad  shall  be  responsible  to  owner  of  prop- 
erty injured  by  fire  is  not  unavailing,  because  not  providing  remedy  or  pre- 
scribing form  of  action. — Stearns  v.  Atlantic  &  St.  L.  R.  Co.,  33. 

Railroad  company,  doing  blasting  on  its  own  land  and  exercising  due  care, 
not  liable  for  injury  to  adjoining  property  arising  from  incidental  jarring. — 
Booth  v.  Rome,  W.  &  O.  T.  R.  Co.,  56. 

Railroad  company,  changing  direction  of  street  at  crossing  and  obstructing 
former  street,  may  be  compelled  to  restore  crossing  by  injunction  at  suit  of 
abutting  owner. — Buchholz  v.  New  York,  L.  E.  &  W.  R.  Co.,  68. 

Railroad  company  not  liable  for  property  destroyed  by  fire  caused  by  third 
person  throwing  lighted  match  on  oil  on  the  platform  at  defendant's  station. 
—Stone  v.  Boston  &  A.  R.  Co.,  99. 

Incidental  injury  to  owner  of  property  near  a  railroad,  caused  by  the  neces- 
sary noise,  vibration,  dust,  and  smoke  from  passing  trains,  which  would 
amount  to  an  actionable  nuisance  if  the  operation  of  the  railroad  were  not  au- 
thorized by  the  Legislature,  must,  if  the  running  of  the  trains  is  so  authorized, 
be  borne  by  the  individual,  without  compensation  or  remedy  in  any  form.— 
Sawyer  v.  Davis,  469. 

The  act  of  a  workman  on  a  railroad  in  riding  on  the  pilot  of  an  engine 
instead  of  in  the  car  provided  for  workmen,  although  he  was  informed 


INDEX.  757 

of  the  danger  of  doing  so,  Is  negligence  on  his  part,  contributing  to  his  In- 
jury by  a  collision  of  the  engine  with  cars  standing  on  the  track,  suffi- 
cient to  defeat  a  recovery  by  him  against  the  railroad  company  therefor, 
—Baltimore  &  P.  R.  Co.  v.  Jones,  568. 

The  conduct  of  a  boy  nearly  10M>  years  old,  of  average  intelligence,  famil- 
iar in  a  general  way  with  the  working  of  a  railroad  turn-table,  knowing  that 
it  was  dangerous  to  play  upon  it,  and  that  so  doing  was  forbidden  by  the 
railroad  company,  and  having  been  warned  by  his  father  not  to  go  upon 
it,  who  nevertheless  engages  with  other  boys  in  swinging  upon  it  while  in 
motion,  and  is  injured  thereby,  is  such  contributory  negligence  as  will  de- 
feat a  recovery  for  such  injury,  although  he  may  not  have  been  of  sufficient 
age  and  discretion  to  understand  the  full  extent  of  the  danger. — Twist  v. 
Winona  &  St.  P.  R.  Co.,  575. 

A  person  seeing  a  small  child  on  a  railroad  track,  in  extreme  peril  from  a 
rapidly  approaching  train,  owes  to  the  child  the  duty  to  rescue  it  if  he  can 
do  so  without  incurring  great  danger  to  himself;  and  the  law  will  not 
impute  negligence  to  an  effort  by  him  to  rescue  the  child,  unless  made 
under  such  circumstances  as  to  constitute  rashness,  in  the  judgment  of  pru- 
dent persons. — Eckert  v.  Long  Island  R.  Co.,  599. 

A  trespasser  upon  the  cars  of  a  railroad  train  is  entitled  to  be  protected 
against  unnecessary  injury  by  the  railroad  company  or  its  servants  in  ex- 
ercising the  right  of  removing  him. — Rounds  v.  Delaware,  L.  &  W.  R.  Co.,  605. 

Wherever  an  employment  in  the  service  of  a  railway  company  is  such  as 
necessarily  to  bring  the  person  accepting  it  into  contact  with  the  traffic 
of  the  line,  risk  of  injury  from  the  carelessness  of  those  managing  the  traffic 
is  one  of  the  risks  necessarily  and  naturally  incident  to  such  employment,  and 
within  the  rule. — Morgan  v.  Vale  of  Neath  Ry.  Co.,  619. 

RATIFICATION. 

Where  plaintiff  ordered  coal  of  defendant,  which  a  third  person,  without 
defendant's  knowledge  or  authority,  delivered,  and  in  so  doing  negligently 
injured  plaintiff's  building,  and  defendant,  with  knowledge  of  the  accident, 
demanded  payment  of  the  coal,  such  demand  was  a  ratification  of  the  acts 
of  the  person  delivering  the  coal,  and  rendered  defendant  liable  for  the 
injury. — Dempsey  v.  Chambers,  182. 

RELEASE. 

Release  of  one  Joint  tort-feasor  releases  the  others. — Gunther  v.  Lee,  179. 

In  a  release  to  one  of  several  joint  tort-feasors,  a  proviso  that  the  right 
to  recover  against  the  other  shall  not  be  affected  is  void. — Gunther  v.  Lee,  180. 

Release  of  right  of  action  for  false  imprisonment  procured  by  duress  is 
void. — Guilleaume  v.  Rowe,  238. 


RELIGIOUS  SOCIETIES. 

Loss  of  membership,  with  no  material  advantages  attaching  thereto,  not 
such  special  damage  as  will  sustain  action  for  speaking  words  not  actionable 
In  themselves. — Roberts  v.  Roberts,  63. 


758  INDEX. 


REMEDIES. 

New  remedy  adopted,  to  prevent  failure  of  justice  or  to  enforce  settled  prin- 
ciples of  law ;  but  not  where  redress  may  be  had  by  any  of  the  forms  of  action 
already  known  and  practiced. — Lamb  v.  Stone,  17;  Rice  v.  Coolidge,  28. 

Action  may  be  either  ex  contractu  or  ex  delicto,  for  breach  of  right  or  duty 
created  by  law,  the  performance  of  which  has  been  assumed  by  contract. 
—Baltimore  City  Pass.  Ry.  Co.  v.  Kemp,  138,  note  II. 

Where  a  nuisance  consists  of  improper  use  of  building,  the  remedy  is  to 
stop  that  use,  and  not  to  destroy  the  building  itself. — Brightman  v.  Inhabit- 
ants of  Bristol,  480. 

REMOTE  DAMAGES. 

See  "Proximate  or  Remote  Cause." 

REPLEVIN. 

Bare  possession  of  property,  though  wrongfully  obtained,  Is  sufficient  title 
to  enable  the  party  enjoying  it  to  maintain  replevin  against  a  mere  stranger 
who  takes  it  from  him. — An,derson  v.  Gouldberg,  510. 

RESISTING  PROCESS. 

Officer  justified  In  using  force  necessary  to  overcome  unlawful  resistance  to 
process. — Hager  v.  Danforth,  214. 

REVERSIONS. 

Action  maintainable  for  injury  to  reversionary  right — Webb  v.  Portland 
.Manuf'g  Co.,  41. 

RIPARIAN  RIGHTS. 

See  "Waters  and  Water  Courses." 

ROOF. 

Of  extension  of  building  with  unprotected  skylight  below  windows  of  rooms 
let  by  owner,  not  a  structure  dangerous  to  tenant  of  rooms. — Miller  y.  Wood- 
head,  8. 

SALES. 

The  bringing  of  an  ex  contractu  action  by  the  owner  against  some  of  the 
wrongdoers  is  an  election  to  treat  the  transaction  as  a  sale,  and  the  owner 
cannot  subsequently  sue  the  others  for  conversion. — Terry  v.  Hunger,  140. 

The  owner  of  goods  wrongfully  converted,  which  remain  in  the  wrongdoer's 
possession,  may  waive  the  tort  and  sue  on  an  implied  contract  of  sale,  in 
which  event  title  to  the  goods  passes  to  the  wrongdoer. — Terry  v.  Munger,  140. 


INDEX.  759 

Representations  made  to  a  father  to  induce  him  to  purchase  a  gun  for 
the  use  of  his  son,  known  by  the  vendor  making  them  to  be  false,  by  which 
the  son  is  induced  to  use  the  gun,  operate  as  a  distinct  fraud  on  the  son, 
and  he  may  maintain  an  action  against  the  vendor  for  injuries  sustained  In 
consequence  thereof. — Winterbottom  v.  Wright,  154. 

Where  an  infant  falsely  represents  himself  to  be  of  age,  and  induces  an- 
other to  sell  him  goods,  the  seller  cannot  maintain  trover  against  him  for  the 
goods. — Slayton  v.  Barry,  168. 

Whore  there  is  a  mistake  between  the  seller  and  purchaser  as  to  the 
article  sold,  the  seller  supposing  he  has  sold  one  article  while  the  purchaser 
supposes  he  has  bought  another,  of  which  he  takes  possession,  he  will  be  liable 
in  trespass. — Hobart  v.  Hagget,  490. 

Where  one  sells  the  property  of  another  he  is  liable  in  an  action  of  tres- 
pass for  the  removal  of  such  property  by  the  purchaser  from  lands  of  the 
owner. — Wall  v.  Osborn,  494. 

When  an  article  is  offered  for  sale,  a  material  latent  defect  must  be 
disclosed,  or  the  sale  will  be  avoided. — Grigsby  v.  Stapleton,  646. 

One  who  sells  cattle,  which  he  knows  have  a  contagious  disease,  not  easily 
detected  except  by  those  acquainted  with  it,  for  a  sound  price,  to  a  purchaser 
having  no  knowledge  of  the  fact,  if  he  does  not  disclose  the  fact  to  the 
purchaser,  is  guilty  of  fraudulent  concealment  of  a  latent  defect,  which 
will  defeat  an  action  for  the  price.  Under  such  circumstances  the  rule  caveat 
emptor  does  not  apply. — Grigsby  v.  Stapleton,  647. 

Action  not  maintainable  by  purchaser  of  a  farm  against  the  vendor  for 
false  representations  by  the  latter,  to  induce  the  purchase,  in  regard  to 
the  absence  of  a  noxious  grass  from  the  farm,  where  it  appears  that  any 
attempt  to  find  such  grass  on  the  farm,  made  before  the  purchase,  would 
have  disclosed  its  existence. — Long  v.  Warren,  660. 

When  the  real  quality  of  property  sold  is  obvious  to  ordinary  intelligence, 
and  the  vendor  and  vendee  have  equal  knowledge  or  equal  means  of  acquiring 
information,  and  the  truth  or  falsity  of  representations  made  by  the  vendor 
as  to  its  quality  may  be  ascertained  by  the  vendee  by  the  exercise  of  ordinary 
inquiry  or  diligence,  and  they  are  not  made  for  the  purpose  of  throwing 
him  off  his  guard  and  diverting  him  from  making  inquiry  and  examination, 
which  every  prudent  person  ought  to  make,  the  vendee  has  no  ground  of 
action  for  fraud,  though  he  purchases  the  property  in  reliance  upon  such 
representations. — Long  v.  Warren,  660. 

SCHOOLS. 

The  reasonableness  of  the  punishment  administered  by  a  teacher  to  his  pupil 
Is  purely  a  question  of  fact. — Sheehan  v.  Sturges,  210. 

Corporal  punishment  of  pupil  by  teacher  to  enforce  compliance  with  proper 
rules  for  good  conduct  and  order  of  school  justifiable,  if  Inflicted  with 
sound  discretion  and  judgment,  and  adapted  to  the  offender  as  well  as  to 
the  offense. — Sheehan  v.  Sturges,  211. 

In  an  action  against  a  teacher  for  assault  and  battery  in  whipping  a  pupil, 
evidence  of  habitual  misconduct  of  the  pupil  prior  to  the  punishment  is  ad- 
missible on  behalf  of  defendant. — Sheehan  Y.  Sturges,  211. 


760  INDEX. 

SEDUCTION. 

See  "Criminal  Conversation." 

Action  maintainable  by  father  for  seduction  of  minor  daughter,  although 
at  the  time  she  is  In  the  employ  of  and  residing  with  another,  without 
any  intention  to  return  to  her  father,  if  the  father  has  not  relinquished  his 
legal  right  to  her  services. — Mulvehall  v.  Millward,  552. 

SELF-DEFENSE. 

Justifies  assault  and  battery. — Scribner  v.  Beach,  197;  Commonwealth  v. 
O'Malley,  200 ;  Commonwealth  v.  Donahue,  202. 

SHERIFFS. 

See  "Offlcera," 

SKY-LIGHTS. 

In  roof  of  extension  of  building,  below  windows  of  rooms  let  by  owner, 
not  a  structure  dangerous  to  tenant  of  rooms,  even  after  removal  of  wire 
screen  intended  to  protect  the  glass. — Miller  v.  Woodhead,  & 

SLANDER. 

See  "Libel" ;  "Slander  of  Title." 

Loss  of  membership  in  religious  society,  to  which  no  material  advantages 
are  attached,  not  such  special  damage  as  will  sustain  action  for  speaking 
words  not  actionable  in  themselves. — Roberts  v.  Roberts,  63. 

Imputing  unchastity  to  a  woman  not  actionable  at  common  law  unless 
special  damage  be  shown. — Roberts  v.  Roberts,  63. 

Action  maintainable  for  words  spoken  of  plaintiff  by  defendant,  whereby 
a  contract  of  marriage  between  plaintiff  and  another  person  was  broken  off 
by  the  latter,  although  such  words  are  not  in  themselves  actionable,  and  al- 
though plaintiff  has  a  remedy  against  such  other  person  for  breach  of  the 
contract. — Moody  v.  Baker,  109. 

Slander  against  a  married  woman,  of  such  a  kind  as  to  cause  Injury  to  her 
husband's  business,  as  a  natural  consequence,  gives  the  husband  a'  cause  of 
action. — Van  Horn  v.  Van  Horn,  296. 

Words  imputing  a  charge  which,  if  true,  would  subject  the  party  charged 
to  an  indictment  for  a  crime  involving  moral  turpitude,  or  subject  him  to  an 
infamous  punishment,  are  in  themselves  actionable. — Young  v.  Miller,  301. 

Where  the  removal  of  a  landmark  is,  by  statute,  indictable  as  a  misde- 
meanor, and  punishable  by  fine  and  imprisonment  in  the  county  jail,  as  it 
also  involves  moral  turpitude,  words  charging  a  person  with  that  offense  are 
actionable  per  se. — Young  v.  Miller,  301. 

Words  imputing  a  criminal  offense  punishable  corporally  are  actionable 
per  se  in  England,  even  though  such  offense  be  not  punishable  by  indictment. 
— Webb  v.  Beavan,  305. 


INDEX.  761 

Words  Imputing  charge  of  swindling  do  not  necessarily  Imply  a  crime,  and 
are  not  actionable  per  se. — Chase  v.  Whitlock,  306. 

Words  imputing  a  crime  in  another  state,  which  is  not  punishable  in  the 
state  in  which  such  words  were  spoken,  may  be  actionable  in  the  latter 
state.— Van  Ankin  v.  Westfall,  307. 

To  say  that  a  person  is  a  "returned  convict,"  thereby  imputing  an  offense 
punishable  by  transportation,  is  actionable  per  se ;  as,  although  the  punish- 
ment has  been  suffered,  the  obloquy  remains. — Fowler  v.  Dowdney,  308. 

Action  maintainable  for  words  imputing  crime,  though  spoken  by  way  of 
interrogation  only,  if,  according  to  the  natural  and  fair  construction  of 
the  language  used,  in  connection  with  the  circumstances,  the  hearers  had  a 
right  to  believe  that  defendant  intended  to  charge  plaintiff  with  the  com- 
mission of  a  criminal  offense. — Gorham  v.  Ives,  309. 

Words  imputing  crime,  but  spoken  and  understood  with  reference  to 
transactions  which  were  known  not  to  amount  to  the  charge  the  words  im- 
port, are  not  actionable. — Van  Rensselaer  v.  Dole,  310. 

To  say  of  a  man  that  he  has  the  venereal  disease  is  actionable,  as  tend- 
ing to  exclude  him  from  society;  but  if,  when  the  charge  was  made,  he 
had  such  disease,  the  truth  of  the  charge  is  a  justification. — Golderman  v. 
Stearns,  313. 

To  say  of  a  man  that  he  had  the  venereal  disease,  and,  having  married, 
communicated  it  to  his  wife,  and  that  he  was  "the  guilty  one,"  does  not 
necessarily  import  the  commission  by  him  of  the  criminal  offense  of  adultery 
or  fornication  so  as  to  render  the  words  actionable  as  imputing  such  offense. 
— Golderman  v.  Stearns,  313. 

To  say  of  a  person  formerly  appointed  to  negotiate  a  treaty  with  Indians 
that  he  bribed  them  to  sign  the  treaty  is  not  actionable  except  as  affecting 
him  in  such  office,  and  no  action  can  be  maintained  therefor  where  the  office 
had  expired  before  the  words  were  spoken. — Forward  v.  Adams,  314. 

Words  not  in  themselves  actionable  may  be  actionable  as  affecting  the  per- 
son of  whom  they  are  spoken  in  his  office,  profession,  trade,  employment,  etc. 
— Forward  v.  Adams,  315 ;  Ireland  v.  McGarvish,  318. 

Ground  of  action  for  speaking  words  not  actionable  in  themselves,  but  only 
in  consequence  of  the  special  character  of  the  party  of  whom  they  are 
spoken,  is  that  such  party  is  disgraced  or  injured  in  his  profession  or  trade,  or 
exposed  to  the  hazard  of  losing  his  office  in  consequence  of  the  slanderous 
words ;  not  that  his  general  reputation  is  affected  by  them. — Forward  v. 
Adams,  316. 

Words  not  actionable  in  themselves,  but  only  in  consequence  of  the  special 
c-linracter  of  the  person  of  whom  they  are  spoken,  are  not  actionable  when 
spoken  after  such  person  has  ceased  to  sustain  that  special  character. — For- 
ward v.  Adams,  316. 

To  render  words  actionable  on  account  of  the  official  or  professional  char- 
acter of  the  person  of  whom  they  are  spoken,  it  is  not  enough  that  they 
tend  to  injure  him  in  his  office  or  calling;  they  must  relate  to  his  official  or 
business  character,  and  impute  misconduct  to  him  in  that  character. — Ireland 
v.  McGarvish,  318. 

To  charge  a  physician  with  gross  ignorance  and  unskillfulness  in  his  pro- 
fession, though  in  but  a  single  act,  is  actionable  per  se;  damage  is  presumed 
from  the  very  nature  of  the  charge. — Secor  v.  Harris,  320. 


7G2  INDEX. 

Damages  caused  by  the  repetition  of  defamatory  words,  without  proper 
occasion  for  repeating  them,  are  not  the  natural  and  legal  consequence  of 
the  first  speaking  of  them,  and  the  person  so  repeating  them  is  alone  liable 
for  such  damages. — Terwilliger  v.  Wands,  324. 

Only  injuries  affecting  the  reputation  constitute  such  special  damage  as 
will  sustain  an  action  for  speaking  words  not  in  themselves  actionable. 
The  words  must  in  fact  disparage  the  character,  and  this  disparagement  must 
be  evidenced  by  some  positive  loss  arising  therefrom,  directly  and  legitimately, 
as  a  fair  and  natural  result. — Terwilliger  v.  Wands,  325. 

Illness  and  inability  to  labor,  caused  by  the  effect  on  one's  mind  of  de- 
famatory words  reported  to  have  been  spoken  of  him,  are  not  special  dam- 
ages for  which  he  can  maintain  an  action  of  slander. — Terwilliger  v.  Wands. 
326. 

No  action  can  be  maintained  for  the  speaking  of  defamatory  words  to  the 
person  of  whom  they  are  spoken  only,  no  other  person  being  present  or 
within  hearing. — Terwilliger  v.  Wands,  326 ;  Shefflll  v.  Van  Deusen,  341. 

There  are  many  kinds  of  charges  which  would  not  be  actionable  per  se  If 
spoken,  but  are  so  if  written. — Tillson  v.  Robbins,  329. 

Slanderous  words  are  those  which  (1)  import  a  charge  of  some  punishable 
crime ;  or  (2)  impute  some  offensive  disease  which  would  tend  to  deprive  a 
person  of  society ;  or  (3)  which  tend  to  injure  a  party  in  his  trade,  occupation, 
or  business;  or  (4)  which  have  produced  some  special  damage. — Moore  v.  Fran- 
cis, 332. 

Malice  in  law  is  inferred,  ordinarily,  from  the  speaking  of  slanderous 
words,  wrongfully  and  intentionally ;  but  where,  on  account  of  the  cause  of 
speaking,  it  is  prima  facie  excusable,  malice  in  fact  must  be  proved  by  plain- 
tiff.— Bromage  v.  Prosser,  338. 

Where,  on  the  evidence  in  an  action  for  slander  for  words  spoken  in  an- 
swer to  an  inquiry,  it  is  a  question  of  fact  whether  defendant  understood 
the  person  making  such  inquiry  as  asking  for  information  to  regulate  his 
own  conduct,  this  should  be  submitted  to  the  jury  for  consideration  before 
the  question  of  malice  in  answering. — Bromage  v.  Prosser,  339. 

That  the  defamatory  words  were  spoken  in  a  public  place  is  immaterial. — 
Shefflll  v.  Van  Deusen,  341. 

A  charge  of  being  a  thief  cannot  be  justified  by  showing  that  the  person 
accused  is  guilty  of  cheating,  fraud,  or  false  pretenses. — Youngs  v.  Adams,  352. 

A  communication  affecting  the  character  of  a  servant,  made  by  his  former 
master  to  another  whose  service  he  is  about  to  enter,  although  made  vol- 
untarily, if  in  good  faith,  without  malice,  in  the  belief  that  it  is  done  in 
the  discharge  of  a  duty,  and  with  a  full  conviction  of  its  truth,  is  privileged, 
and  damages  cannot  be  recovered  therefor  without  a  finding  of  malice. — Fresh 
v.  Cutter,  356. 

But  the  speaking  of  such  words,  though  with  a  belief  in  their  truth,  to 
a  person  other  than  the  new  master,  would  not  be  privileged. — Fresh  v.  Cut- 
ter, 357. 

Malice  Is  Implied  as  well  from  oral  as  from  written  defamation,  where 
the  communication  is  not  privileged. — Byam  v.  Collins,  358. 

As  to  slanderous  statements  made  by  parties,  counsel,  or  witnesses  in  the 
course  of  judicial  proceedings,  the  privilege  is  absolute,  however  malicious 
the  intent,  or  however  false  the  charge  may  have  been. — Moore  v.  Manu- 
facturers' Nat.  Bank,  377. 


INDEX.  7G3 

But  the  privilege  does  not  extend  to  slanderous  publications  plainly  ir- 
relevant and  impertinent,  voluntarily  made,  and  which  the  party  making 
them  could  not  reasonably  have  supposed  to  be  relevant. — Moore  v.  Manu- 
facturers' Nat.  Bank,  378. 

To  show  that  words  were  meant  to  impute  larceny,  colloquium  showing  ex- 
trinsic circumstances  is  necessary. — Stitzell  v.  Reynolds,  380. 

Statement  that  plaintiff  had  her  hogs  in  another's  corn  and  carried  corn 
away  is  not  actionable  without  special  damage. — Stitzell  v.  Reynolds,  380. 

Distinctions  stated  between  "averment,"  colloquium,"  and  "innuendo." — 
Stitzell  v.  Reynolds,  381. 

SLANDER  OF  TITLE. 

To  maintain  an  action  for  slander  of  title,  the  words  must  not  only  be 
false,  but  must  be  uttered  maliciously,  and  be  followed  as  a  natural  and 
legal  consequence  by  pecuniary  damage  to  plaintiff,  which  must  be  specially 
alleged  and  proved. — Kendall  v.  Stone,  384. 

Although  one  who  has  entered  into  a  contract  to  purchase  land  is  in- 
fluenced to  desire  to  withdraw  therefrom  by  statements  as  to  the  vendor's 
title  made  by  a  third  person,  if  the  vendor  assents  to  a  rescission  of  the 
contract,  he  cannot  recover  damages  from  the  third  party  for  the  loss  of 
the  sale,  as  it  is  not  the  legal  consequence  of  the  words  spoken. — Kendall 
v.  Stone,  384. 

False  and  malicious  statements  disparaging  an  article  of  property  when  fol- 
lowed by  special  damage  to  the  owner,  are  actionable. — Wilson  v.  Dubois,  386. 

Special  damage  is  of  the  gist  of  the  action  for  slander  of  title,  and,  where 
the  special  damage  relied  on  is  loss  of  sale,  it  is  indispensable  to  allege  and 
prove  loss  of  sale  to  some  particular  person. — Wilson  v.  Dubois,  387. 

SPRING  GUNS. 

Owner  of  land  planting  spring  guns  in  it  liable  to  person  Injured  thereby, 
while  merely  straying  on  the  land. — Gramlich  v.  Wurst,  14;  Clark  v.  Cham- 
bers, 102. 

SPRINGS. 

See  "Subterranean  Waters." 

SQUIB. 

Action  maintainable  for  personal  injury  from  lighted  squib  first  thrown 
by  defendant,  although  injury  would  not  have  happened  without  interven- 
tion of  others. — Clark  v.  Chambers,  102 ;  Vandenburgh  Y.  Truax,  85. 

STATUTES. 

Action  maintainable  for  violation  of  statutory  duty. — Willy  v.  Mulledy,  30. 

An  action  lies  under  a  statute  providing  for  injuries  by  railroad  fire,  though 
the  statute  does  not  provide  remedy  or  prescribe  form  of  action. — Stearns 
v.  Atlantic  &  St  L.  R.  Co.,  33. 


764  INDEX. 

A  statute  which  authorizes  a  thing  to  be  done  which  can  be  done  without 
creating  a  nuisance  will  not  be  deemed  to  authorize  a  nuisance. — Sawyer 
v.  Davis,  472. 

STEAM  BOILERS. 

Owner  of  land  not  liable  for  injuries  caused  by  the  explosion  of  a  steam 
boiler  used  by  him  on  his  premises,  without  proof  of  want  of  due  care  and 
skill  on  the  part  of  him  or  his  agent. — Marshall  v.  Welwood,  560. 

STEAM  WHISTLES. 

Use  of  steam  whistles  by  employers  for  purpose  of  giving  notice  to  their 
workmen,  although  such  as  to  cause  Injury  to  individuals  which  a  court 
of  equity  would  restrain,  may  be  authorized  by  legislature,  subject  to  regu- 
lation by  municipal  authorities. — Sawyer  v.  Davis,  409. 


STREET  RAILROADS. 

A  child  two  years  of  age,  who,  while  under  the  care  of  an  adult  sister,  goes 
upon  the  track  of  a  horse  railroad  and  is  there  run  over  by  the  carelessness 
of  the  driver  of  a  car  thereon,  is  not  deprived  of  a  right  of  action  for  the  iu- 
jury,  though  the  sister's  carelessness  of  supervision  was,  in  part,  the  cause 
of  the  injury. — Newman  v.  Phillipsburg  Horse  Car  R.  Co.,  585. 

SUBORNATION  OF  PERJURY. 

Action  maintainable  against  one  who  suborns  witnesses  to  swear  falsely 
to  defamatory  statements  concerning  another,  in  a  suit  to  which  neither  of 
them  is  a  party. — Rice  v.  Coolidge,  27. 

SUBTERRANEAN  WATERS. 

Opening  wells  and  drawing  water  therefrom,  not  a  ground  for  action  by 
owner  of  adjoining  land,  although  the  supply  of  water  to  his  wells  is  thereby 
diminished.— Ocean  Grove  Camp  Meeting  Ass'n  v.  Commissioners  of  Asbury 
Park,  59. 

Digging  on  one's  own  land,  although  it  intercepts  percolating  waters  which 
supply  the  spring  of  another,  is  not  a  cause  of  action. — Barkley  v.  Wilcox, 
433. 

Pollution  of  percolating  waters  gives  right  of  action  to  adjoining  owner  — 
Ballard  v.  Tomlinson,  443. 

Owner  of  land  has  right  of  action  for  pollution  of  percolating  waters  by 
adjoining  owner. — Ballard  v.  Tomlinson,  443. 

SURFACE  WATERS. 

Owner  of  land  has  an  absolute  property  in  surface  water  thereon  before  it 
leaves  the  land  and  becomes  part  of  a  definite  water  course. — Barkley  v. 
Wilcox.  433. 


INDEX.  765 

The  owner  of  land,  which  is  so  situated  that  the  surface  waters  from  the 

land  above  naturally  descend  upon  and  pass  over  it,  may  in  good  faith,  and 

for  the  purpose  of  building  upon  and  improving  his  land,  fill  and  grade  it, 

.  although  thereby  the  water  is  prevented  from  reaching  it,  and  is  detained 

upon  the  land  above. — Barkley  v.  Wilcox,  434. 

SWINDLING. 

Words  imputing  charge  of  swindling  do  not  necessarily  imply  a  crime,  and 
are  not  actionable  per  se. — Chase  v.  Whitlock,  306. 

TAXATION. 

Assessors  of  taxes  act  judicially  in  fixing  the  value  of  taxable  property, 
where  it  is  not  sworn  to  as  authorized  by  law ;  and  they  are  not  liable 
to  a  civil  action  by  one  over  whose  person  and  property  they  had  juris- 
diction for  the  purpose  of  assessment,  for  failing  to  make  any  allowance  or 
deduction  on  account  of  an  exemption  of  a  certain  amount  to  which  he 
was  entitled,  or  for  assessing  his  property  at  a  higher  rate  than  that  of 
others. — Weaver  v.  Devendorf,  535. 


TENANCY  IN  COMMON. 

See  "Joint  Tenancy  and  Tenancy  in  Common." 

TENEMENT  HOUSES. 

Failure  of  owner  of  tenement  house  to  comply  with  statute  requiring  fire 
escapes  to  be  provided  therefor  is  a  breach  of  duty  for  which  he  is  liable 
to  a  tenant  for  damages  thereby  caused  to  the  latter. — Willy  v.  Mulledy,  30. 

Owner  liable  for  defective  condition,  although  insane. — Morain  v.  Devlin, 
127. 

TORT. 

See  particular  heads. 

Violation  of  legal  right  or  legal  duty  necessary  to  constitute  a  tort.— 
Guest  v.  Reynolds,  4 ;  Miller  v.  Woodhead,  7 ;  Gramlich  v.  Wurst,  9 ;  Rich 
v.  New  York  Cent.  &  H.  R.  R.  Co.,  148. 

Violation  of  merely  moral  right  or  duty  does  not  constitute  a  tort. — Lamb 
v  Stone,  17. 

Wrongful  intent  not  essential  to  constitute  tort,  in  cases  of  trespass. — Bes- 
«ey  v.  Olliot,  118 ;  Guille  v.  Swan,  120. 

No  liability  in  tort  for  purely  accidental  injuries. — Brown  v.  Kendall,  129. 

Violation  of  duty  of  care  on  the  part  of  a  common  carrier  of  passengers, 
towards  a  passenger,  is  a  tort. — Baltimore  City  Pass.  Ry.  Co.  v.  Kemp,  130. 

Action  of  tort  maintainable  for  breach  of  right  or  duty  created  by  law, 
though  its  performance  has  been  assumed  by  contract — Baltimore  City  Pass. 
Ry.  Co.  v.  Kemp,  138,  note  11. 


766  INDEX. 

No  accurate  and  perfect  definition  of  word  "tort." — Rich  v.  New  York  Cent 
&  H.  R.  R.  Co.,  745. 

Where,  upon  a  breach  of  contract,  there  Is  not  merely  a  broken  promise, 
but  also  trust  betrayed  and  confidence  abused — constructive  fraud,  or  a  negli- 
gence that  operates  as  such — such  fraud  or  negligence  makes  the  breach  of  con- 
tract actionable  as  a  tort — Rich  v.  New  York  Cent  &  H.  R.  R.  Co.,  149. 

Omission  to  perform  a  contract  obligation  may  constitute  a  tort,  where 
the  omission  is  also  an  omission  of  a  legal  duty,  even  though  such  legal  duty 
arises  from  circumstances  not  elements  of  the  contract,  but  merely  connected 
with  it  and  dependent  upon  it — Rich  v.  New  York  Cent  &  H.  R.  R.  Co.,  150. 

In  cases  of  contract  where  there  is  no  legal  duty  independent  of  the  con- 
tract, one  not  in  privity  with  a  party  to  the  contract  cannot  recover  against 
him  in  tort  for  an  injury  involving  a  breach  of  the  contract. — Winterbottom 
v.  Wright  155. 

Where,  in  cases  of  contract  the  law  imposes  a  duty  towards  third  persons 
who  are  not  parties  to  the  contract,  such  persons  may  recover  in  an  action 
of  tort — Thomas  v.  Winchester,  157. 

Dealer  in  medicines  selling  as  a  harmless  remedy  a  poison  of  similar  ap- 
pearance, liable  for  injuries  caused  thereby  to  a  patient  to  whom  it  was  ad- 
ministered, although  there  was  no  privity  between  them. — Thomas  v.  Win- 
chester, 160. 

The  liability  for  torts  is  joint  and  several. — Kirby  v.  President,  etc.,  of 
Delaware  &  H.  Canal  Co.,  170. 

It  seems  that  one  who  procures  another  to  break  a  contract  by  the  lat- 
ter with  a  third  party  is  responsible  for  the  breach  only  where  malice  to 
such  third  person  is  shown,  giving  a  distinct  cause  of  action  for  the  malice 
which  caused  the  breach  of  contract  resulting  in  damages  to  him. — Van  Horn 
v.  Van  Horn,  295. 

TREES. 

A  verbal  contract  by  the  owner  of  land  for  the  sale  of  trees  standing  there- 
on, to  be  cut  and  removed  by  the  purchaser,  gives  the  latter  an  implied  license 
to  enter  for  that  purpose ;  but  such  license  is  revocable  at  any  time,  except  as 
to  an  entry  for  the  purpose  of  removing  trees  cut  before  the  revocation. — 
Giles  v.  Simonds,  406. 

Trees  and  vines,  although  planted  merely  for  ornament  or  luxury,  are  en- 
titled to  protection  by  injunction  from  injury  by  destructive  vapors. — Camp- 
bell v.  Seaman,  422. 

One  cutting  timber  on  land  of  another,  though  without  intent  to  trespass, 
and  by  mistake  as  to  the  line  of  division,  is  liable  as  a  trespasser. — Hobart  v. 
Hagget  491. 

TRESPASS. 

See  "Trespassers." 

In  trespass  for  sawing  off  top  of  fence,  plaintiff  entitled  to  recover  full 
value  of  property  destroyed,  though  fence  was  improved  by  defendant's  act 
— Fisher  v.  Dowling,  44. 


INDEX.  767 

Action  maintainable  for  a  trespass  without  wrongful  Intent. — Bessey  y. 
Olliot,  118 ;  Guille  r.  Swan,  120 ;  Hobart  v.  Hagget,  491. 

An  Infant  of  six  liable  for  compensatory  damages  for  entering  premises  of 
another  and  destroying  shrubbery  and  flowers. — Huchting  v.  Engel,  163. 

Where  an  infant  who  has  hired  a  horse  willfully  and  intentionally  injures 
the  animal,  an  action  for  trespass  will  lie  for  the  tort,  but  not  if  the  injury 
occurred  through  unskillfuluess. — Moore  v.  Eastman,  166. 

To  render  an  infant  who  has  hired  a  horse  liable  for  trespass,  he  must  do 
some  positive  act  which  amounts  to  an  election  to  disaffirm  the  contract. — 
Moore  v.  Eastman,  166. 

Parties  advising  or  aiding  in  committing  trespass  are  liable,  though  not 
personally  present  at  the  time  of  its  commission. — Bell  v.  Miller,  181. 

Making  a  complaint  to  a  magistrate  does  not  render  complainant  liable  In 
trespass  for  acts  done  under  a  warrant  issued  by  the  magistrate,  even  if  the 
magistrate  has  no  jurisdiction. — Barker  v.  Stetson,  235. 

An  entry  upon  land  of  another  without  his  permission,  express  or  implied, 
or  the  license  or  authority  of  law,  constitutes  a  trespass,  for  which  damages 
are  recoverable,  though  merely  nominal. — Hatch  v.  Donnell,  388;  Newkirk  v. 
Sabler,  391. 

For  appropriation  of  soil  of  a  public  highway  trespass  lies  by  the  owner  of 
land  through  which  highway  passes. — Gidney  v.  Earl,  390. 

Entry  upon  lands  of  another  excusable,  if  necessary  for  preservation  of  life. 
—Newkirk  v.  Sabler,  392. 

Entry  on  land  of  another  excusable,  if  necessary  to  prevent  irremediable 
loss  or  destruction  of  property  of  third  person. — Newkirk  v.  Sabler,  392 ;  Proc- 
tor v.  Adams,  408. 

Entry  on  lands  of  another  justified  by  license,  express  or  implied,  though 
by  parol. — Newkirk  v.  Sabler,  392 ;  Giles  v.  Simonds,  405. 

Entry  on  lands  of  another  excused  by  necessity. — Newkirk  v.  Sabler,  392; 
Proctor  v.  Adams,  408 ;  Campbell  v.  Race,  409. 

One  has  no  right  to  enter  upon  land  of  another  for  the  purpose  of  taking 
away  a  chattel  thereon  which  belongs  to  him,  where  there  is  no  license,  ex- 
press or  implied,  nor  any  legal  excuse,  as  on  the  ground  of  necessity,  even 
though  such  chattel  is  unlawfully  detained  there. — Newkirk  v.  Sabler,  393. 

Owner  of  domestic  animals  liable  for  injuries  committed  by  them  while 
trespassing  on  the  close  of  another,  irrespective  of  his  knowledge  of  their 
vicious  propensities ;  but  not  liable  for  injuries  by  them  unless  they  were  tres- 
passing, or  he  has  knowledge  of  their  vicious  propensities. — Van  Leuven  v. 
Lyke,  395. 

Trespass  to  land  an  injury  to  the  possession. — Halligan  v.  Chicago  &  B.  I. 
R.  Co.,  398. 

A  single  trespass  may  be  committed  on  several  closes,  and  one  action  main- 
tained therefor  as  one  trespass. — Halligan  v.  Chicago  &  R.  I.  R.  Co.,  398. 

The  gist  of  the  action  of  trespass  to  lands  is  the  injury  to  the  possession, 
and  he  only  can  maintain  the  action  who  either  has  or  is  entitled  to  the 
possession.  Where  the  land  is  in  the  actual  and  exclusive  occupation  of  the 
owner's  tenant,  the  owner  cannot  maintain  the  action. — Halligan  v.  Chicago 
&  R.  I.  R.  Co.,  398. 


768  INDEX. 

One  going  Into  a  public  tavern  and  there  ordering  and  drinking  wine,  does 
not,  by  refusing  to  pay  therefor,  become  a  trespasser  ab  initio ;  mere  not  do- 
ing is  no  trespass. — Six  Carpenters'  Case,  401. 

The  abuse  of  a  license  to  enter  premises  given  by  law  makes  the  party  a 
trespasser  ab  initio ;  but  otherwise  where  the  license  to  enter  was  given  by 
the  person  in  possession. — Six  Carpenters'  Case,  401. 

Action  maintainable  by  one  tenant  in  common  against  another  upon  an 
actual  ouster. — Murray  v.  Hall,  403. 

Breaking  of  inner  door,  by  officer  to  serve  process,  justifiable. — Williams  v. 
Spencer,  412. 

The  owner  of  an  ox  which,  while  being  driven  along  the  highway,  escapes 
and  enters  premises  of  another  adjoining  the  highway,  is  not  liable  for  the 
damages  thereby  done,  unless  there  was  negligence  on  his  part. — Tillett  v. 
Ward,  413. 

One  or  two  adjoining  proprietors  upon  whose  land  cattle  stray  from  the 
highway,  from  which  they  pass,  through  a  defect  in  that  portion  of  the  division 
fence  which  he  was  by  law  bound  to  keep  in  repair,  upon  the  land  of  the 
other,  is  not  liable  to  the  latter  in  trespass  therefor,  although  he  would  be 
liable  for  such  trespass  by  cattle  rightfully  on  his  land. — Lawrence  v.  Combs, 
415. 

Trespass  maintainable  by  owner  of  a  dog  for  the  killing  of  it,  although  it 
was  not  at  the  time  in  his  possession,  but  loaned  to  another. — White  v.  Brant- 
ley,  489. 

One  cutting  timber  on  land  of  another,  though  without  intent  to  trespass, 
and  by  mistake  as  to  the  line  of  division,  is  liable  as  a  trespasser. — Hobart 
v.  Ilagget,  491. 

To  maintain  trespass  de  bonis  asportatis,  actual  forcible  dispossession  of 
property  is  not  necessary ;  any  unlawful  interference  with  or  exercise  of  acts 
of  ownership  over  property,  to  the  exclusion  of  the  owner,  will  constitute  a 
trespass,  though  there  was  no  wrongful  intent,  and  the  property  was  taken 
accidentally  or  by  mistake. — Dexter  v.  Cole,  492. 

Plaintiff's  sheep,  running  at  large  in  the  highway,  became  mixed  with 
sheep  which  defendant  was  driving  to  market.  Defendant  separated  all  but 
four  of  them,  which  he  drove  to  market  with  his  flock.  Held,  that  he  was 
liable  in  trespass. — Dexter  v.  Cole,  492. 

Where  a  party  sold  a  mill  standing  on  the  lot  of  his  neighbor,  and  promised 
to  assist  the  purchaser  in  its  removal,  the  vendor  was  liable  to  an  action  of 
trespass,  although  there  was  no  proof  of  his  being  present  or  aiding  in  re- 
moval of  the  building  by  such  purchaser. — Wall  v.  Osborn,  493. 

Trespass  to  personal  property  an  injury  to  the  right  of  possession. — Lunt 
v.  Brown,  495. 

A  person  cannot  maintain  trespass  for  taking  personal  property,  unless,  at 
the  time  of  the  taking,  he  had  either  actual  or  constructive  possession  or  a 
right  to  the  immediate  possession. — Lunt  v.  Brown,  495. 

Where  personal  property  is  left  in  the  possession  of  another  under  an  agree- 
ment for  a  specified  time,  the  owner  cannot  maintain  trespass  against  a  third 
person  for  taking  such  property  during  such  time. — Lunt  v.  Brown,  495. 

An  action  for  trespass  on  land  can  be  brought  only  within  the  state  in 
which  the  land  lies. — Ellemvood  v.  Marietta  Chair  Co..  G79. 


INDEX 


TRESPASSERS. 

See  "Trespass.** 

Not  entitled  to  redress  for  injuries  negligently  Inflicted,  unless  some  legal 
duty  towards  them  is  violated. — Gramlich  v.  Wurst,  12. 

Occupant  of  land  lawfully  making  excavation  therein  in  ordinary  manner, 
not  near  highway,  not  liable  for  injuries  to  trespasser  falling  into  excavation 
— Gramlich  v.  Wurst,  13. 

Trespasser  upon  the  cars  of  a  railroad  train  is  entitled  to  be  protected 
against  unnecessary  injury  by  the  railroad  company  or  its  servants  in  ex- 
ercising the  right  of  removing  him.— Rounds  v.  Delaware,  L.  &  W.  R.  Co.,  605. 

TROVER. 

See  "Conversion  of  Personal  Property.'* 

TRUSTEE  PROCESS. 

Trustee  entitled  to  equitable  set-off  for  advances  made  to  or  debts  paid  for 
principal  debtor  in  good  faith. — Lamb  v.  Stone,  18. 

UNDERTAKERS. 

The  business  of  an  undertaker  will  not  be  restrained  by  Injunction  at  the 
suit  of  an  owner  of  premises  adjoining  the  place,  because  such  business  is  an 
offense  or  a  nuisance  to  him,  or  destructive  to  his  comfort,  or  his  enjoyment 
of  his  home,  unless  the  acts  complained  of  are  of  such  a  nature  as  to  affect 
all  reasonable  persons  similarly  situated. — Rogers  v.  Elliott,  447. 

VENDOR  AND  VENDEE. 

See  "Sales.** 

VIEW. 

Obstruction  of  light,  air,  and  view  by  owner  of  adjoining  land  Is  not  a 
ground  of  action  unless  adverse  right  to  the  enjoyment  of  such  privileges  has 
been  acquired. — Guest  v.  Reynolds,  4. 

VOID  PROCESS. 

See  "Process.** 

A  complainant,  obtaining  a  warrant  from  a  magistrate  having  no  jurisdic- 
tion of  the  cause  and  inducing  an  officer  to  arrest  defendant  thereon,  is  liable, 
even  though  the  warrant  is  valid  on  its  face. — Emery  v.  Hapgood,  236. 

An  officer  making  an  arrest  under  process  void  on  its  face  is  liable  for 
false  imprisonment. — Elsemore  v.  Longfellow,  240. 
CHASE  (2o  ED.) — 49 


770  INDEX. 

VOTERS. 

See  "Elections  and  Voters." 

WAREHOUSEMEN. 

A  statement  by  a  warehouseman,  In  a  circular  soliciting  patronage,  that  the 
exterior  of  his  warehouse  is  fireproof,  is  the  statement  of  a  matter  of  fact, 
not  a  mere  expression  of  opinion,  and  if  made  by  him  with  knowledge  that  it 
was  false,  and  with  intent  to  deceive,  a  person  induced  thereby  to  store  in  the 
warehouse  property  which  is  destroyed  by  fire  communicated  to  portions  of 
the  exterior  which  are  not  fireproof  may  recover  from  the  warehouseman  for 
the  loss  so  incurred. — Hickey  v.  Morrell,  652. 

WARRANT. 

See  "Arrest" ;  "False  Imprisonment" ;  "Process." 

WATERS  AND  WATER  COURSES. 

See  "Subterranean  Waters";   "Surface  Waters." 

To  an  action  by  one  of  several  owners  of  mills  and  privileges  on  the  same 
dam,  to  restrain  the  other  owners  from  drawing  water  from  the  head  of  the 
pond,  it  is  no  answer  that  defendants  have  improved  the  supply  of  water  to 
the  pond  by  a  reservoir  higher  up  the  stream. — Webb  v.  Portland  Manuf'g 
Co.,  42. 

One  of  several  owners  of  mills  and  mill  privileges  on  the  same  dam  is  en- 
titled to  his  proportion  of  the  whole  stream  at  the  dam,  undivided  and  undi- 
minished  in  its  natural  flow,  and  may  restrain  the  other  owners  by  injunction 
from  drawing  from  the  head  of  the  pond  any  part  of  the  water,  even  a  part 
less  than  their  proportion. — Webb  v.  Portland  Manuf'g  Co.,  42. 

Action  maintainable '  for  injuries  from  breach  of  statutory  duty  by  defend- 
ants to  maintain  works  to  keep  out  or  carry  off  water,  that  being  the  sub- 
stantial cause  of  the  mischief,  although  wrongful  acts  or  negligence  of  third 
persons  increased  or  contributed  to  the  damage. — Clark  v.  Chambers,  105. 

Action  maintainable  for  injuries  caused  by  horses  taking  fright  at  a  stream 
of  water  allowed  by  defendants  to  spout  up  in  the  road,  and  falling  into  a 
ditch  constructed  in  the  road  by  others  as  contractors  for  a  sewer,  and  negli- 
gently left  by  them  unfenced. — Clark  v.  Chambers,  105. 

Uniform  or  uninterrupted  flow  not  essential  to  constitute  a  water  course. — 
Barkley  v.  Wilcox,  430. 

In  time  of  drought,  riparian  owner  may  detain  the  water  of  the  stream  by  a 
dam  for  such  time  as  necessary  to  raise  a  head  sufficient  to  enable  him  to  use 
the  water  for  the  purpose  of  his  machinery,  if  the  machinery  is  such  as  is 
adapted  to  the  power  of  the  stream  at  its  usual  stage. — Clinton  v.  Myers,  438. 

It  is  immaterial  that  such  detention  of  the  water  makes  the  lower  ripar- 
ian owner's  rights  more  valuable,  if  he  insists  upon  his  legal  right  to  the  water 
as  it  would  naturally  flow,  and  such  right  is  of  any  value  to  him. — Clinton  v, 
Myers.  440. 


INDEX  771 

As  against  a  lower  riparian  owner  on  a  natural  water  course,  an  upper 
riparian  owner  of  land  on  both  sides  of  the  stream  has  no  right  to  detain 
such  surplus  of  the  waters  thereof  as  he  does  not  require  for  present  use, 
until  they  may  be  wanted  by  him  in  a  dry  season. — Clinton  v.  Myers,  440. 

The  pollution  of  a  stream  of  water,  so  as  to  prevent  the  use  of  it  for  any 
of  the  reasonable  and  proper  purposes  to  which  running  water  is  usually  ap- 
plied, is  an  infringement  of  the  rights  of  other  riparian  owners,  and  creates 
a  nuisance  which  will  be  enjoined  at  the  suit  of  those  injured. — Merrifield  v. 
Lombard,  441. 

Injuries  from  flowage  caused  by  making  the  dam  higher  or  tighter  than 
before  give  right  of  action. — Curtice  v.  Thompson,  459. 

WELLS. 

See  "Subterranean  Waters." 

WINDOWS. 

Obstruction  of  view  or  light  not  ground  of  action,  unless  adverse  right  has 
been  acquired. — Guest  v.  Reynolds,  4. 


WITNESSES. 

That  witness  swearing  falsely  is  protected  by  his  personal  privilege  from 
a  civil  suit  therefor  does  not  exempt  the  person  suborning  him  from  liability 
to  one  defamed  thereby,  who  was  not  a  party  to  the  action. — Rice  v.  Coolidge, 
27. 

Witness  not  liable  in  damages  for  evidence  given  by  him  In  a  suit,  al- 
though false,  by  which  another  is  injured. — Mobile  Life  Ins.  Co.  v.  Brame,  625. 

WORDS  AND  PHRASES. 

Damnum  absqne  Injuria. — Gramlich  v.  Wurst,  13;  Webb  v.  Portland  Mfg. 
Co.,  36;  Winterbottom  v.  Wright,  156;  Castle  v.  Houston,  349;  Campbell  v. 
Seaman,  418 ;  Clinton  v.  Myers,  437 ;  Marshall  v.  Wellwood,  564. 

Damnum  cum  injuria. — Lamb  v.  Stone,  17. 

Injuria  sine  damno. — Webb  v.  Portland  Mfg.  Co.,  37. 

Ex  jure  naturae. — Webb  v.  Portland  Mfg.  Co.,  41. 

"Injury"  implies  something  more  than  damage. — Brown  v.  Kendall,  129. 

"Ordinary  care"  means,  in  general,  that  kind  and  degree  of  care  which 
prudent  and  cautious  men  would  use,  such  as  is  required  by  the  exigency  of 
the  case,  and  such  as  is  necessary  to  guard  against  probable  danger. — Brown 
v.  Kendall,  130. 

"Tort"  No  accurate  and  perfect  definition  of  "tort." — Rich  v.  New  York- 
Cent.  &  H.  R.  R.  Co.,  145. 

"Imprisonment"  includes,  besides  mere  loss  of  freedom  to  go  where  one 
pleases,  restraint  within  limits  defined  by  an  exterior  will  or  power. — Bird  v. 
Jones,  216. 


772  INDEX. 

"Malice,"  In  common  acceptation,  means  111  will  against  a  person;  but,  In 
its  legal  sense,  It  means  a  wrongful  act  done  intentionally,  without  just  cause 
or  excuse. — Bromage  v.  Prosser,  338. 

Distinctions  stated  between  "averment,"  "colloquium,"  and  "innuendo." — 
Stitzell  v.  Reynolds,  381. 

"Water  course."  A  natural  water  course  is  a  natural  stream,  flowing  in  a 
defined  bed  or  channel,  with  banks  and  sides,  having  permanent  sources  of 
supply.  It  is  not  essential  that  the  flow  should  be  uniform  or  uninterrupted. — 
Barkley  v.  Wilcox,  430. 

"Conversion"  is  an  unauthorized  assumption  and  exercise  of  the  right  of 
ownership  over  goods  belonging  to  another,  to  the  exclusion  of  the  owner's 
rights. — Laverty  v.  Snethen,  497. 

WRITS. 

See  "Certiorari" ;  "Execution" ;  "Injunction" ;  "Process." 


WIST  PUBLISHING  CO. ,  PKINTER8  AND  8TEUEOTTPER8,  ST.  PAUL,  MINN. 


UNIVERSITY  OF  CALIFORNIA  LIBRARY 

Los  Angeles 

This  book  is  DUE  on  the  last  date  stamped  below. 


MAR  1  4  1974 


Form  L9-Series  4939 


UC  SOUTHERN  REGIONAL  LlBRAF 


A     000  669  883     1 


